Loughlin

FOU N DAT IONS OF PU BL IC L AW
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Foundations
of Public Law
MARTIN LOUGHLIN
Professor of Public Law,
London School of Economics and Political Science
1
3
Great Clarendon Street, Oxford OX2 6DP
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British Library Cataloguing in Publication Data
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Library of Congress Cataloging in Publication Data
Loughlin, Martin.
Foundations of public law / Martin Loughlin.
p. cm.
ISBN 978–0–19–925685–3 (hardback)
1. Public law. 2. Public law—History. 3. Public law—Philosophy.
4. State, The. 5. Rule of law. I. Title.
K3150.L677 2010
342—dc22 2010018309
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India

Printed in Great Britain
on acid-free paper by
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ISBN 978–0–19–925685–3
1 3 5 7 9 10 8 6 4 2
In memory of John Griffith, 1918–2010
On what will man base the economy of the world he wants to rule? If left to
each individual’s whim, what confusion! If on justice, he knows not what it
is. Certainly, if he did know, he would not have laid down that most com-
mon of all men’s maxims, that a man must follow the customs of his own
country. The glory of true equity would have held all nations in its sway. We
should see it enacted by all the States of the world, in every age, instead of
which we see nothing, just or unjust, which does not change in quality with
a change in climate. Three degrees of latitude overthrow jurisprudence. A
meridian determines the truth. Law has its periods . . .
From this confusion derives the fact that one man will say the essence
of justice is the legislator’s authority, another the king’s convenience, and a
third, present custom. This last is the safest. Following reason alone, nothing
is intrinsically just; everything moves with the times. Custom is the whole of
equity for the sole reason that it is accepted. That is the mystical basis of its
authority. Whoever tries to trace this authority back to its origins, destroys
it. . . . The art of criticizing and overthrowing States lies in unsettling estab-
lished customs by delving to their core in order to demonstrate their lack of
authority and justice. They say they have to go back to the fundamental and
original laws of the State, which unjust custom has abolished. This is a sure
way of losing everything; nothing will be just on those scales. . . . This is why
the wisest of legislators used to say that the good of mankind requires them
to be deceived . . . He must not be allowed to be aware of the truth about the
usurpation. It was introduced once without reason and has since become
reasonable. He must be made to regard it as genuine and eternal, and its
origins must be disguised if it is not to come to a swift end.
Blaise Pascal, Pensées [1670], §94
Acknowledgments
This book has been a long time in the making, and my debts are many. Work
started in earnest as a result of the award of a Leverhulme Major Research
Fellowship between 2000 and 2002. That period of research leave resulted in
the publication of a short work outlining the conceptual building blocks of the
subject, but this larger study was always intended to follow. One difficulty has
been that the more I investigated, the more I realized that the subject had to be
examined as a common European achievement, and this meant that the scale of
the undertaking was vast. This has pushed me to the limits of my competence—
cognitively, intellectually, linguistically. But here it now is, a companion volume
to The Idea of Public Law. And it is a pleasure once again to record my thanks to
the Leverhulme Trustees.
If the Leverhulme award kick-started the project, it was the opportunity to
spend the academic year 2007–2008 as Fellow of the Wissenschaftskolleg zu
Berlin that provided the spur to bring it to a conclusion. I thank the Rector, Luca
Guiliani, and his staff for offering a remarkably conducive environment in which
to work. It was also a singular privilege for me to be at the Wissenschaftskolleg as
a member of the focus group convened by Dieter Grimm on constitutions beyond
the nation state. This group—Petra Dobner, Dieter Grimm, Bogdan Iancu, Fritz
Scharpf, Alexander Somek, Gunther Teubner, and Rainer Wahl—has been a
constant source of stimulus and support. I am deeply indebted to these friends
for their support, generosity of spirit, and, not least, for provoking me to try to
explain my arguments more clearly.
Beyond that group, I have received a great deal of assistance from so many col-
leagues, whether in the form of discussion and debate, the provision of materials,
or through invitations to present aspects of my arguments at seminars and con-
ferences. At the risk of overlooking some (unjustifiably), I should specifically like
to thank Denis Baranger, Olivier Beaud, Armin von Bogdandy, Sabino Cassesse,
Emilios Christodoulidis, Alex Fischer, Moira Gatens, Matthias Jestaedt, Olivier
Jouanjan, Jeffrey Jowell, Michiatsu Kaino, Jens Kersten, Mattias Kumm, Hans
Lindahl, Oliver Lepsius, Ingolf Pernice, Anne Peters, Stephen Sedley, Stephen
Tierney, Scott Veitch, Neil Walker, and Gary Wickham. I owe a special debt to
Neil Duxbury and Thomas Poole for so carefully reading an entire draft of the
book. Finally, I should like to express my gratitude to Beth Foley for assistance
with translations, to Frances Foley for work on the bibliography, and to Chris
Foley for editorial advice.
Martin Loughlin
London
January 2010
Contents
Introduction: Rediscovering Public Law 1
I. OR IGI NS
1. Medieval Origins 17
I. The Theological-Political Question 18
II. The Papal Monarchy 19
III. Empire and Papacy 22
IV. Theocratic Kingship 25
V. Regnum and Sacerdotium 28
VI. Conciliarism 32
VII. The Secularization of Government 37
VIII. Medieval and Modern Constitutionalism 46
2. The Birth of Public Law 50

I. The Methodological Turn 51
II. Bodin’s Method 56
III. Absolutism 62
IV. The Constitution of Sovereignty 69
V. Modern Natural Law: Subjective Right,
Security, and Sociability 73
VI. Transition Paradoxes 83
I I . FOR M AT ION
3. The Architecture of Public Law 91

I. Right Ordering 91
II. Early-Modern Formation 94
III. The Architectural Metaphor 98
IV. The Architecture of Power 102
V. Constitutional Architecture 106
x Contents
4. The Science of Political Right: I 108
I. Political Right 108
II. Rousseau’s Science of Political Right 112
III. Sovereignty and Government in The Social Contract 117
IV. Modernity and German Idealism: Kant’s Rechtslehre 120
V. The Formal Science of Political Right 127
5. The Science of Political Right: II 132

I. Rousseau’s Pessimism 132
II. The Political Pact in Historical Practice 134
III. Rousseau’s Sociology of Political Right 137
IV. Fichte’s Foundations of Natural Right 140
V. The Concept of Political Right in Hegel’s Rechtsphilosophie 146
VI. The Struggle for Recognition 153
6. Political Jurisprudence 157

I. Public Law as Political Jurisprudence 158
II. Power 164
III. Liberty 171
IV. The Grammar of Public Law 178
I I I . S TAT E
7. The Concept of the State 183

I. Sovereignty: A Conceptual Sketch 184
II. Status, Estate, State 186
III. Staatslehre 190
IV. Community, Society, State 196
V. The State as a Scheme of Intelligibility 205
8. The Constitution of the State 209

I. The Concept of the Constitution 209
II. The Normative Power of the Factual 216
III. Constituent Power 221
IV. The Public Sphere 228
V. Droit Politique as the Constitution of the State 231
9. State Formation 238

I. European State-building Practices 239
II. The Formation of the English Parliament 243
III. Parliament and the Formation of the Modern State 250
Contents xi
IV. The Struggle for Responsible Government 255

V. The Formation of the Parliamentary State 259
VI. Representative and Responsible Government 262
VII. State, Law, and Constitution 268
I V. C ONS T I T U T ION
10. The Constitutional Contract 275

I. Modern Constitutions 276
II. The Constitution as Contract 278
III. Revolution and Constitution 282
IV. The Constitution as Fundamental Law 288
V. Constitutional Maintenance 297
VI. Constitutional Patriotism 305
VII. Reflexive Constitutionalism 310
11. Rechtsstaat, Rule of Law, l’Etat de droit 312

I. The Ambiguous Character of the Rule of Law 312
II. Origins 314
III. Mode of Association 324
IV. The Rule of Law as Liberal Aspiration 332
V. Rechtsstaat or Staatsrecht? 337
12. Constitutional Rights 342

I. Natural Rights, Civil Rights, Constitutional Rights 343
II. Civil Society 346
III. Bills of Rights 350
IV. Constitutional Adjudication 356
V. Subjective Rights and Objective Law 367
V. G OV E R N M E N T
13. The Prerogatives of Government 375

I. Prerogative Power 376
II. Locke on the Prerogative 383
III. The Executive within Modern Republican Government 387
IV. Government Growth, Executive Power,
and Modern Constitutions 391
V. Prerogative Transformed 396
VI. Prerogative Sublated 402
xii Contents
14. Potentia 407
I. The Disciplinary Revolution 408
II. Cameralism 417
III. The Police Power 422
IV. Justice and Police 429
V. The Growth of Administrative Power 432
15. The New Architecture of Public Law 435

I. The Emergence of Administrative Law 435
II. The English Quarrel with Administrative Law 440
III. Administrative Government and the Separation of Powers 445
IV. The Rise of the Ephorate 448
V. The New Separation of Powers 452
VI. The Transformation of Public Law 456
VII. The Triumph of the Social? 461
Bibliography 467
Index 511
Introduction: Rediscovering Public Law
The objective of this book is to outline the contours of a special branch of juris-
prudence which, although performing an essential task in the workings of the
modern world, is today in danger of being overlooked. The term I use for this
branch of jurisprudence is public law. This term needs clarification.
In the Middle Ages, the branch of legal knowledge to which public law most
closely correlated was known simply as ‘fundamental law’.¹ Fundamental law
was distinct from ‘ordinary law’, the latter being rules of civil conduct declared
and enforced by the ruling authorities—by which was generally meant kings,
albeit with assistance from their officers and from Parliaments and courts. The
critical difference was this: whereas ordinary law regulated conduct between sub-
jects, fundamental law regulated the conduct of the king and his officers, the
Parliament, and the courts. Ordinary law bound individuals, but fundamental
law was binding on the governing authorities.
This distinction between ordinary law and fundamental law was commonly
acknowledged—if only implicitly—by medieval jurists. In his celebrated argu-
ment in the mid-thirteenth century, for example, Bracton claimed that although
the king is the highest legal authority whose will cannot be questioned by another,
he remains under God and the law.² How, it might be asked, can the supreme
law-giver be bound by the law? Actually, Bracton was combining two different
concepts of law. He was employing—though he would not have expressed it
thus—the distinction between law as an instrument of the governing author-
ity (which power of law-making vests in the king) and law that establishes gov-
ernmental authority (the law that makes the king). The former is ordinary law,
otherwise called civil or positive law—law made by the sovereign. The latter is
fundamental law, law that makes the sovereign.
What the medieval jurists called fundamental law is analogous to what we
today call public law. The aim of this book is to explain how ‘fundamental law’
¹ See JW Gough, Fundamental Law in English Constitutional History (Oxford: Clarendon Press,
1955); André Lemaire, Les lois fondamentales de la monarchie française d’après les théoreticiens de
l’ancien régime (Paris: Faculté de Droit, Université de Paris, 1907); G Kleinheyer, ‘Grundrechte’
in Otto Brunner, Werner Conze, and Reinhardt Koselleck (eds), Geschichtliche Grundbegriff e:
Historisches Lexicon zur Politisch-Sozialen Sprache in Deutschland (Stuttgart: Klett-Cotta, 1972–
1997), vol 2, 1042–1087, 1054–1057; Helmut Quaritsch, Staat und Souveränität: I Die Grundlagen
(Frankfurt am Main: Athenäum Verlag, 1970), 347–368 (leges imperii).
² Henry de Bracton, De Legibus et Consuetudinibus Angliae (On the Laws and Customs of
England) [c1258] George E Woodbine (ed) Samuel E Thorne (trans) (Cambridge, MA: Belknap
Press, 1968), ii.33.
2 Introduction: Rediscovering Public Law
works in the modern world. The essential point is not that fundamental law
survives into the modern era; rather, that it is radically altered. The role under-
taken by the medieval idea of fundamental law is now carried out by public
law. But public law is different. In a strict sense, it comes into existence only
as a consequence of the changes that give birth to the modern idea of the state.
Because of these changes, the character of fundamental law is altered. Public
law emerges as a distinctive juristic discourse operating according to its own
discrete logic.
This is a more extensive concept of public law than that deployed by many
contemporary lawyers. Jurists today often draw a distinction between public law
and private law, between the law that regulates relations between the individual
and government and the law that regulates relations between individuals. In
that sense, public law is being treated as a subset of ordinary positive law. The
concept of public law adopted in this book is much broader. The entire body of
ordinary positive law presupposes the existence of a prior source of authority—
fundamental law, now public law. This inquiry into the foundations of public
law deals with this more basic concept: it is an investigation into questions of
‘right’ relating to the conferral of authority and legitimacy on modern govern-
mental ordering.
***
The concept of public law explicated in this book is today a universal phenom-
enon, if only because the entire world is now divided into an assortment of sov-
ereign states, each of which has governing arrangements authorized by means of
law. But in its origins the concept is European.³ It was fashioned in early-modern
European discourse and in the context of changes that led to the formation of
the modern state. Economic, social, political, and technological development
brought about basic changes in the character of the medieval idea of fundamental
law. Since this fundamental law was regarded as an expression of natural law, the
changes that led to the emergence of the autonomous concept of public law might
be said to be a consequence of the processes of secularization, rationalization, and
positivization of fundamental law.
This study is therefore an inquiry into a set of ideas and practices concern-
ing the authority of the office of government that emerged through a common
European discourse. In the development of this discourse, and especially during
its formative period, English (later, British) ideas and practices were crucial. I
emphasize this because some British jurists object to this characterization, claim-
ing that public law is an essentially continental European concept. Citing the
³ See, eg, Bertrand Badie, The Imported State: The Westernization of the Political Order Claudia
Royal (trans) (Stanford: Stanford University Press, 2000), 233–234: ‘Dependence takes form in
culture, in imitation, and in the image . . . [O]ne can locate the dominant culture in the universalist
enunciation that the Western model of the state makes of itself ’.
tradition in British constitutional practice of the rule of the ordinary law, they
make a case for British exceptionalism. This is misplaced. Although the concept
of public law has remained suppressed in British legal practice for much of the last
250 years, this is because the British state has managed to present its governing
arrangements as being so secure as to avoid the need for juristic investigation into
its foundations. But now that British constitutional arrangements are increas-
ingly being placed in question, it seems more difficult to avoid direct engagement
with the concept.
Since this argument is likely to meet resistance, it is as well to confront
this point immediately. We might begin by noting how prominently the con-
cept of fundamental law figured in the English constitutional disputes of
the seventeenth century. Indeed, it might even be argued that the confl icts
of that turbulent century entirely revolved around competing interpretations
of the fundamental law.⁴ In January 1649, for example, the charge that the
Commons laid before Charles I at the end of the Civil War was that the king
‘had a wicked design to subvert the ancient and fundamental laws and liber-
ties of this nation’.⁵ Forty years later, after James II had fled the kingdom, in a
prelude to the enactment of the Bill of Rights in January 1689, the Commons
declared not only that the king had ‘endeavoured to subvert the constitution
of the kingdom’ but that he had ‘violated the fundamental laws’.⁶ It is evident
that the concept of fundamental law—albeit in its various guises⁷—figured
prominently in the basic constitutional confl icts of the seventeenth century.
What has happened since?
The standard answer is that the concept of fundamental law has since disap-
peared from English political and legal discourse. In the period following the
Revolution of 1689—that is, the critical period in which the modern British
constitution was shaped—the concept of fundamental law was abandoned and
⁴ Following the invention of printing, these political disputes were fought over between politi-
cians, lawyers, clergymen, and spokesmen for factions through the publication of thousands of
pamphlets and tracts. For selections of these documents, in which the concept of fundamental law
figures prominently, see SR Gardiner (ed), The Constitutional Documents of the Puritan Revolution,
1625–1660 (Oxford: Clarendon Press, 1906); Joyce Lee Malcolm (ed), The Struggle for Sovereignty:
Seventeenth Century English Political Tracts (Indianapolis: Liberty Fund, 1999), 2 vols; Don M
Wolfe (ed), Leveller Manifestoes of the Puritan Revolution [1944] (New York: Humanities Press,
1967).
⁵ Cited in Gough, above n 1, 1. ⁶ Ibid.
⁷ See, eg, George Lawson, Politica Sacra et Civilis [1660] Conal Condren (ed) (Cambridge:
Cambridge University Press, 1992). Lawson had argued that it was necessary to distinguish
between ordinary law and constitutional law, or between what he called ‘personal’ sovereignty and
‘real’ sovereignty. By personal sovereignty Lawson meant ‘the power of a commonwealth already
constituted’ to make law. Th is he contrasted with real sovereignty, ‘the power to constitute, abol-
ish, alter, reform forms of government’. Th is latter concept concerned ‘the power of constitution’, a
power which is ‘above the power of a parliament’ because the existence of a Parliament ‘doth neces-
sarily presuppose a form of government already agreed upon’. From Lawson’s argument, it followed
that the Parliament could not ‘meddle with the fundamental laws of the constitution’ (see Lawson,
ibid, 47–48).
replaced by the claim that there is only one true concept of law: the ordinary
law proclaimed by Act of Parliament, to which all allegiance is owed. Following
Hobbes’ definition of law as a species of command, all broader claims—whether
to custom, the ‘fundamental liberties of the freeborn Englishman’, or more radi-
cal notions rooted in the natural rights discourse—were cut off.⁸ Fundamental
law became lost from view. There is, argued Halifax in his Political Thoughts of
1750, ‘no other fundamental but that every supreme power must be arbitrary’.
The word ‘fundamental’, he explained, is merely ‘a word used by the laity, as the
word sacred is by the clergy, to fi x everything to themselves they have a mind to
keep, that nobody else may touch it’.⁹
This claim has become so widely accepted that, at least until recently, its pecu-
liarities have scarcely been recognized. In a tradition of legal thought built on
the works of Hobbes, Bentham, Austin, and Dicey, the term ‘law’ came to be
reserved for the edicts of the sovereign power. In Dicey’s framework, the principle
of government under law was converted into ‘the rule of law’, by which he meant
the universal subjection to the ordinary law as applied by the ordinary courts. In
this form, the concept of ‘the rule of law’ reinforced the overarching doctrine of
parliamentary sovereignty to assert that the most authoritative expression of law
is the ordinary law enacted by Act of Parliament.
Many British constitutional lawyers have regarded the triumph of ordinary
law and the consequential disappearance of fundamental law as an expression
of progress. Such progress expressed itself in a clearer differentiation of govern-
mental tasks and a more precise disciplinary specialization. The concept of law
was thus placed on a narrower, but also more firm, scientific and professionalized
footing. One consequence of this development has been the general acceptance
within the British tradition of a sharp distinction between law and right and, it
might also be said, between law and politics. The British, it would appear, have
remained faithful Hobbesians.¹⁰
This practice of restricting the meaning of law to that of ordinary law enacted
by Parliament and declared by courts must nevertheless somehow be recognized
to rest on an acceptance of the authority of governing institutions to make law.
Whence is this authority generated? This, modern legal positivists claim, is a
question that lies beyond the boundaries of juristic knowledge.
⁸ Aspects of this development are examined in Martin Loughlin, ‘Constituent Power Subverted:
From English Constitutional Argument to British Constitutional Discourse’ in Martin Loughlin
and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form
(Oxford: Oxford University Press, 2007), 27–48; Martin Loughlin, ‘The Constitutional Thought
of the Levellers’ (2007) Current Legal Problems 1–39, esp 29–37.
⁹ Marquess of Halifax, ‘Political Thoughts and Reflections’ [1750] in his Complete Works
JP Kenyon (ed) (Harmondsworth: Penguin, 1969), 192–212, 198.
¹⁰ Hobbes had been the first to argue that right and law are mutually antagonistic concepts,
on the ground that while right consists in the freedom to do, law determines and binds: Thomas
Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University Press, 1996), 91.
Some British jurists did try to keep open this inquiry. One such was John
Millar, Regius Professor of Law in the University of Glasgow during the latter
half of the eighteenth century, who, in his studies on the British constitution,
adhered to this broader concept of public law. In his Historical View of the English
Government, for example, Millar argued that the system of law in every country
is divided into ‘that part which regulates the powers of the state, considered as
a corporation or body politic; and that which regulates the conduct of the sev-
eral members of which this corporation is composed’. The former deals with the
government, and is ‘the law which constitutes’, while ‘the latter, the law which is
constituted’. The former, he elaborated, ‘may with propriety, though not in the
common acceptation, be called the public; the latter the private law’.¹¹
Millar’s ‘scientific Whig’ analysis was not in keeping with the prevailing
political trends.¹² It may even be argued that his broad concept of public law
had to be marginalized—if not actively suppressed—for ‘reasons of state’.¹³ But
even this claim is controversial, not least because the idea of reason of state can-
not be recognized without this broader concept of public law being admitted.¹⁴
My objective here is not to offer some revisionary account of modern British
constitutional practice: I want only to suggest that, even though the concept of
public law was submerged, it could not be eliminated. The hegemonic account
of the status of ordinary law in the British system rests on foundations of right,
foundations that were hidden from view only while the authority of British con-
stitutional arrangements remained unquestioned. During the latter half of the
twentieth century, those arrangements have become subjected to more search-
ing inquiry.¹⁵
In these circumstances, the concept of public law presents itself for more
explicit consideration. As the authority of the British constitutional inheritance
has waned, we have seen attempts by various jurists to rejuvenate the concept of
¹¹ John Millar, An Historical View of the English Government [1803] Mark Salber Phillips and R
Dale (eds) (Indianapolis: Liberty Fund, 2006), 796 (emphasis in original).
¹² See Duncan Forbes, ‘ “Scientific Whiggism”: Adam Smith and John Millar’ (1953–1954) 7
Cambridge Journal 643–670; Michael Ignatieff, ‘John Millar and Individualism’ in Istvan Hont
and Michael Ignatieff (eds), Wealth and Virtue: The Shaping of Political Economy in the Scottish
Enlightenment (Cambridge: Cambridge University Press, 1983), 317–343; Knud Haakonssen,
‘John Millar and the Science of a Legislator’ (1985) 30 Juridical Review 41–68.
¹³ See Loughlin, ‘Constituent Power Subverted’, above n 8.
¹⁴ See, eg, Halifax, ‘The Character of a Trimmer’ (c1685) in Complete Works, above n 9, 49–102.
Halifax here not only offers an implicit acceptance of this notion of public law (recognizing that
‘our laws are Trimmers, between the excess of unbounded power and the extravagance of liberty
not enough restrained’ (at 102)); he also explicitly adopts the concept of reason of state: ‘there is
a natural Reason of State, an undefinable thing grounded upon the common good of mankind,
which is immortal, and in all changes and revolutions still preserveth its original right of saving a
nation, when the letter of the law would perhaps destroy it; and by whatever means it moveth, it
carrieth a power with it that admitteth of no opposition, being supported by Nature’ (ibid, 60).
¹⁵ See, eg, Nevil Johnson, In Search of the Constitution: Reflections of State and Society in Britain
(Oxford: Pergamon Press, 1977); Lord Hailsham, The Dilemma of Democracy: Diagnosis and
Prescription (Glasgow: Collins, 1978); David Marquand, The Unprincipled Society: New Demands
and Old Politics (London: Fontana, 1988).
fundamental law in the British system. Having lost the thread that leads us back
through the labyrinth of modern history, however, many of these analyses have,
I believe, misconstrued the endeavour. Failing fully to connect with the older
traditions, these analyses have tended to assume that the concept of fundamental
law can be equated with the (ordinary) common law.¹⁶ By this stroke, considera-
tion of the distinctive nature of public law is circumvented. Reducing public law
to a species of ordinary law ensures that the nature, method, and functions of
public law will be misconstrued. In its extreme form, this leads inexorably down
the path towards judicial supremacism—the conviction that, as authoritative
interpreters of ordinary law, the judiciary must also act as guardians of funda-
mental law.
My claim is that recent developments in the British system have resulted in the
foundations of public law being once again raised for consideration, something
that we have traditionally sought to avoid. One of the reasons for this reluctance
is that, in order to address these foundational questions, the British are obliged to
re-connect with the mainstream of the European tradition of public law. This is
one of the key themes of the book. This investigation into the foundations of pub-
lic law offers a contribution to that specific British debate. But that is a secondary
objective. By virtue of the exercise that must be undertaken, it can also be read as
an attempt to explain the general character of the modern concept of public law.
***
The concept of public law being investigated is of European origin: it is a ‘west-
ern’ invention. Its origins can be traced back to the attempts of medieval jurists
to grapple with the question of the authority of the governing power. That is a
vast and rich topic: I examine these debates in Part I of the book for the purpose
of locating the origins of the modern concept of public law. The concept of fun-
damental law that flourished in the medieval period involved the intermingling
of political and religious ideas, and was treated as an expression of natural law.
The conditions in which public law emerged as a distinctive feature of modern
European thought come about only when this ‘law of the body politic’ is separ-
ated from its ancient religious foundations. How did this happen?
Gauchet has, I believe, identified the critical factor. The essence of religious
thought, he argues, ‘lies in accepting the external as the originating source and
¹⁶ See, eg, R (Jackson) v Attorney-General [2005] UKHL 56 at [102] (per Lord Steyn): ‘The clas-
sic account given by Dicey . . . can now be seen to be out of place in the modern United Kingdom.
The supremacy of Parliament is still the general principle of our constitution. It is a construct of
the common law. The judges created this principle. If that is so, it is not unthinkable that cir-
cumstances could arise where the courts may have to qualify a principle established on a different
hypothesis of constitutionalism’. Steyn here states that the parliamentary supremacy doctrine is a
construct of the common law rather than an expression of the fundamental law. To claim that since
the doctrine was created by judges, it may therefore be altered by the judges is, however, to assume
that which—it is argued—cannot be assumed.
the unchangeable as law’.¹⁷ The era of religion thus comes to a close only when law
is acknowledged to be a human construct, devised by humans according to their
own self-defined purposes. Only under conditions of secularization and posi-
tivization is the medieval idea of fundamental law transformed into the modern
discipline of public law. Public law emerges as the law constituting the authority
of government only under conditions in which law is recognized to be an instru-
ment of self-government. And this transformation occurs only when the political
realm can define itself as an autonomous sphere.
Defining this moment with precision—and indeed specifying the defining
character of the moment—is a difficult and intrinsically contentious exercise.¹⁸
For Gauchet, that moment takes place at the beginning of the eighteenth cen-
tury. This, he claims, is the moment in European history when a shift occurs
from a hierarchically organized, religiously constituted world to one based on the
differentiation of regimes: ‘Whether regarding the principles of collective real-
ity, the understanding of the world, or the relation to nature, we are henceforth
confronted with autonomous domains developing according to their own neces-
sities or dynamics’.¹⁹ Only with the creation of the modern world, born of ‘the
deepest ever fracture in history’,²⁰ do we see the formation of distinct spheres of
human activity—the economic, the scientific, the technical, the intellectual, and
the political. And only with this differentiation can these regimes leave religion
behind and develop their own autonomous modes of operation. But the precise
timing of this shift, it should be emphasized, varies from regime to regime, as
their beliefs, traditions, and practices of governing adjust to more basic forces of
social, economic, and political change.
This general claim suggests that in order to account for the formation of public
law as a distinct discipline, it is necessary to examine the complexities of mod-
ernization. This raises huge questions, many of which go far beyond the scope
of this study. Nevertheless, in recognition of the importance of these underlying
issues, some attempt is made to address them in Part I of the book. Briefly, in the
context of intense religious conflicts and the extension of governmental powers in
the sixteenth and seventeenth centuries, the character of collective human asso-
ciation was placed in question. This upheaval, it will be claimed, is a consequence
of three linked, early-modern revolutionary movements: the technological, the
bourgeois, and the disciplinary. In conjunction, these revolutions have come to
shape our thinking about the nature of the state, its institutional form, and its
main modes of action. The resulting developments in thought and practice led
¹⁷ Marcel Gauchet, The Disenchantment of the World: A Political History of Religion Oscar Burge
(trans) (Princeton, NJ: Princeton University Press, 1997), 28.
¹⁸ See Charles Taylor, A Secular Age (Cambridge, MA: Belknap Press, 2007), esp ch 2.
¹⁹ Gauchet, above n 17, 162. Taylor, above n 18, 222, refers to it as an ‘anthropocentric shift’
and suggests that it takes place ‘around the turn of the seventeenth/eighteenth centuries, give or
take a couple of decades’.
²⁰ Gauchet, above n 17.
to a basic shift in the understanding of governmental authority: away from the
ruler’s concern to ‘maintain his state’ and towards the recognition of an objective
order—the state which the ruler was obliged to maintain.²¹ This intrinsically
modern idea of the state became the ground on which an autonomous concept
of public law could be built. But the argument is not that the modern world is an
irreligious world; religion lives on as a powerful influence in modern societies.
The point is that it lives on as culture, and no longer as the basic structuring force
of collective organization.
Public law is thus formed in the modern world as the code of this emerging
autonomous political sphere. This is public law as ‘political right’. The works of
many of the major intellectual figures of the early-modern period can be under-
stood as attempts to explain the nature of this newly emerging science of political
right. A significant number of these scholars were practising lawyers, but even
Hobbes, who was not, considered his political analysis as a general inquiry into
the rights of sovereigns and the duties of subjects.²² This yields a notion of juristic
inquiry which is broader than is typically conceived in Anglo-Saxon countries,
one in which the relations between philosophy, political theory, history, and law
are more intimate. This broader notion of what might be called political jurispru-
dence—the character of which is outlined in Part II of the book—forms a central
element of this investigation.
***
This broad concept of public law presents some initial difficulties. One difficulty
flows from the tendency of the major European languages to use the word ‘law’
as a general term covering the physical, moral, and juridical forms of knowl-
edge.²³ A more specific linguistic difficulty arises in English because of our use
of the word ‘law’ in circumstances where other European languages differentiate
between right and law. Consequently, in English each word of the term ‘public
law’—‘public’ or ‘political’? ‘law’ or ‘right’?—requires iteration.
As has already been suggested, it is necessary to distinguish between two
different concepts of law: the positive or civil law brought into existence by the
authorized law-making institutions of the state, and the fundamental or public
law which binds the government. One specific reason why the latter tends to be
neglected by English-speaking jurists is that we lack the vocabulary for distin-
guishing between law as an instrument of government (lex, la loi, das Gesetz) and
²¹ See Quentin Skinner, The Foundations of Modern Political Th ought (Cambridge: Cambridge
University Press, 1978), vol I, Preface.
²² Thomas Hobbes, On the Citizen [1647] Richard Tuck and Michael Silverthorne (eds)
(Cambridge: Cambridge University Press, 1998), ch 8.
²³ See George Armstrong Kelly, ‘A General Overview’ in Patrick Riley (ed), The Cambridge
Companion to Rousseau (Cambridge: Cambridge University Press, 2001), 8–56, 40. Kelly argues
that the conflation of the natural and coercive (physical laws), the natural and non-coercive (moral
laws), and the artificial and coercive (juridical laws) offers ‘an important clue to the western mind’.
law as an expression of the constitutive principles of right-ordering (ius, le droit,

das Recht). In this study, we are concerned with the right-ordering of the state, in
Latin transcribed as ius publicum, in French expressed as droit politique, and in
German as allgemeines Staatsrecht. For English speakers, however, if we are not
to invoke the ambiguous expression ‘political right’, or the downright confusing
‘political law’, the concept must simply be rendered as public law.
The character of this public law—that is, public law as political jurispru-
dence—is apparent in Hegel’s Philosophy of Right, the aim of which was to devise
‘the science of the state’ as ‘nothing other than the endeavour to apprehend and
portray the state as something inherently rational’.²⁴ Hegel goes on to explain
that ‘[i]n speaking of Right [Recht, ie, jus], we mean not merely what is gener-
ally understood by the word, namely civil law, but also morality, ethical life, and
world-history’.²⁵ This broad concept embraces a category of juristic thought that
flourished from the late-sixteenth to the early-nineteenth centuries, extending
from the earlier work of Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza,
Locke, and Pufendorf to include the writings of Montesquieu, Rousseau, Kant,
Fichte, Smith, and Hegel. The type of study in which we are engaged might in
German be called Grundlagen des Staatsrechts and in French, Principes du droit
politique. In English, it is simply ‘foundations of public law’.
Even without the problems of translation across European languages, other
difficulties exist. Most significant perhaps is the fact that this modern concept of
public law is often no longer commonly conceived as forming a unified field of
knowledge. This is mainly due to the way in which the processes of moderniza-
tion have led to a growing differentiation in the spheres of human action. The
disciplines of economics, sociology, and political science have now established
themselves as discrete modes of investigation, and history and philosophy have
been placed on rigorous methodological foundations. One consequence is that
what Hegel has called the ‘science of the state’ has become broken up into a range
of discrete activities and disciplines.²⁶
If the foundations of a broadly conceived concept of public law are to be exam-
ined, the implications of these relatively recent scholarly developments must be
called into question. The book proceeds on the premiss that, whatever advances
it has made, modern disciplinary specialization has also contributed to certain
losses in understanding. Specifically, we have lost a distinct way of expressing in
juristic language the authority claims made by governing institutions. This is due
in large part to the way in which the social sciences have been grounded. These
²⁴ GWF Hegel, Philosophy of Right [1821] TM Knox (trans) (Oxford: Oxford University Press,
1952), 11, Preface.
²⁵ Ibid, §33A.
²⁶ See Stefan Collini, Donald Winch, and John Burrow, That Noble Science of Politics: A Study
in Nineteenth-Century Intellectual History (Cambridge: Cambridge University Press, 1983); on the
more general European aspects of this development, see Peter Wagner, A History and Theory of the
Social Sciences (London: Sage, 2001).
disciplines have almost invariably tried to establish themselves on the model of
the natural sciences, and this has led, for example, to ‘an almost boundless con-
fidence [being] placed in the defining of formal relations as a way of achieving
clarity and certainty about our thinking, be it in the (mis)application of rational
choice theory to ethical problems or in the great popularity of computer models
of the mind’.²⁷ Legal science has not been immune from these influences, as the
heightened prominence accorded to various strands of legal positivism during the
late-nineteenth and the twentieth centuries attests. By foregrounding the ques-
tion of validity (is this or is this not a rule of an extant legal order?), modern juris-
prudence has tended to push issues of authority to its periphery.
This study can therefore be viewed as an exercise in retrieval. The objective
is to rediscover the earlier discourse of political right and assess its relevance in
the contemporary world. Some scholars argue that the technologies of discipline
generated in late-modern societies now render juristic discourse anachronistic.
Others claim that—owing to the apparent positivization of fundamental law
within modern constitutional frameworks—these issues can now be addressed
entirely through the ordinary methods of positive law. This study proceeds on
the basis that, though these claims deserve consideration, neither is self-evidently
correct. The various issues they raise are addressed in the last three parts of the
book, which examine the juristic idea of the state (Part III), and the impact both
of modern constitutionalism (Part IV) and of the rise of administrative govern-
ment (Part V) on ways of conceptualizing the idea of political right.
***
This book presents an account of the foundations of public law. In this sense, it
can be understood as an historical investigation into the ideas and practices that
have shaped the modern relations of law and government. But it goes further: in
pursuing this historical inquiry, it also aims to bring to light the contemporary
significance of public law as political right. The book therefore seeks to develop
further the ‘pure theory’ of public law sketched in The Idea of Public Law.²⁸ This
pure theory offers a positive and practical theory of public law, one that is shorn
of ideological considerations. Although I do not propose now either to rehearse
the outlines of that account or to try and distil the central claims made in this
book, it might be helpful to introduce some of the most basic features of the pure
theory.
First is the issue of scope: understood as a discourse of political right, public
law takes shape as a set of rules, principles, canons, maxims, customs, usages, and
manners that condition, sustain, and regulate the activity of governing the state.
This discourse works to maintain the autonomous world of the public sphere, a
²⁷ Charles Taylor, ‘Overcoming Epistemology’ in his Philosophical Arguments (Cambridge,

MA: Harvard University Press, 1995), 1–19, 6.
²⁸ Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), ch 9.
sphere that achieves its distinctive position through arrangements that seek to
reconcile claims of individual autonomy with the existence of a regime of public
authority.
Many theorists have tried to formulate theories that achieve that reconcilia-
tion. In these schemes, humans are generally assumed to be free and equal beings
who collectively determine the nature of their political existence and who, as the
ultimate source of political authority, are conceived to be authors of the governing
regimes under which they live. Since this principle of self-actualization is made
operational through the institution of law, their objective can be understood as
the attempt to establish a science of political right. This brings us to the second
feature that should be highlighted: the nature of political right.
Strictly conceived, this science of political right is simply unachievable: the
world is littered with normative schemes that have foundered on the rocks of
modern political realities. But even as normative schemes they remain unconvinc-
ing, and this is largely because of their inability to reconcile two equally powerful
but contrary human dispositions: the desire to be autonomous and the desire to
be a participant in a common venture. Since this is the situation, the objective of
a positive theory of public law can only be that of developing the most effective
apparatus we can that acknowledges the power of these competing claims. And
since this disjuncture between freedom and belonging can be neither eliminated
nor reconciled, it can only be negotiated. In one sense, this negotiation does not
itself amount to the explication of right: it involves an exercise of prudential judg-
ment. Consequently, rather than treating public law as the unfolding of a sci-
ence of political right, it is best expressed as an exercise in political jurisprudence.
But another way of putting this is to say that the discourse of political right
involves the elaboration of a prudential language through which that negotiation
is effected.²⁹
This brings us to a third feature of the pure theory, one that constitutes the
‘red thread’ that runs through the book. By broadening our focus from positive
law to political right, a radical change in our perception of law is effected. Rather
than treating law in orthodox liberal fashion as a bridle on an otherwise unre-
strained exercise of power, the pure theory views public law as a power-generating
phenomenon. In order to grasp the significance of this, we need first to recog-
nize the distinctive nature of political power. Political power is a special type of
power created by the drawing together of people in a common undertaking. This
type of power is founded on the ‘consent’ of the people, is rooted in trust, and
is generated through the imposition of controls and checks on those who hold
positions of authority. In this sense, political power is created through the ways
²⁹ The political theorist who has done most to develop this line of prudential argument is
John Dunn: see John Dunn, ‘Reconceiving the Content and Character of Modern Political
Community’ in his Interpreting Political Responsibility: Essays 1981–1989 (Cambridge: Polity Press,
1990), ch 12. See further, John Dunn, The Cunning of Unreason: Making Sense of Politics (London:
HarperCollins, 2000).
in which governing power is institutionalized. To put the point paradoxically:
in this sphere, constraints on power generate power. Thus understood, modern
constitutional structures should not be seen to impose limitations on the exer-
cise of some pre-existing power; these constitutional structures are the means
by which political power is itself generated. In accordance with the pure theory,
political right is the means by which an autonomous public sphere maintains and
enhances its power.
The power-generating concept of public law as political right opens up a
novel—but also complex and ambiguous—way of looking at the relationship
between government and law. It follows from this autonomous understanding
of the subject that freedom, like power, cannot to be treated as some pre-existing
condition: freedom is a status that is realized only within the state. Consequently,
the sovereign’s commands (ie, positive law) cannot be conceived as imposing
restrictions on some pre-existing freedom; such commands might equally be
viewed as conditions for the realization of freedom. The discourse of political
right, operating to enhance the power of the public sphere, strives to realize an
equal liberty for all through an institutional arrangement that imposes a struc-
ture which constrains and disciplines individuals. The ‘autonomous’ individuals
who supposedly institute a regime of self-government are at the same time disci-
plined and shaped by these institutions of government. The discourse of political
right is simultaneously enabling and constraining.
This power-generating perspective on public law possesses an additional fea-
ture that ought to be highlighted: this is the relational/reflexive dimension to
the subject. The main point here is that judgment in public law is of its nature
relational: decisions are made according to perceptions of relative roles in the
structure of public authority. Since power is generated through an institutional
configuration of authority, and since political right functions to maintain the
power of the system, power should not be said to reside in any specific locus: it
is generated through the relationship itself. This relational dimension gives the
system its dynamic quality. But it also means that there can be no fi xed constitu-
tional settlement. Constitutions are constantly evolving in the light of political
necessities and, as a result of this evolutionary impetus, the meaning and impact
of legal concepts and doctrines will similarly change.
This relational aspect of public law is rendered even more complex by the fact
that there exist two different concepts of power at work within the public sphere.
These are those that shape the structure (potestas) and infrastructure (potentia)
of the state respectively. Political right, it might be said, is generated by way of a
dialectical process between potestas (the institutionalized authority of rule) and
potentia (the government’s control over the actual disposition of resources). This
manifests itself in a bifurcated consciousness in contemporary governmental
arrangements between (to put it simply) the idealism of constitutional law and the
materialism of administrative law; these issues are taken up in Parts IV and V of
the book. Such reflexivity highlights the ambivalence of these processes, not least
because the decisions we make at one moment in time have the potential to shape
what we will become in the future. Rousseau concisely expressed this dilemma
when claiming that the state ‘cannot endure without freedom, nor freedom with-
out virtue, nor virtue without citizens’. If we are able to create citizens, he added,
we will realize liberty. But if we fail in this endeavour, we will create ‘nothing but
nasty slaves, beginning with the chiefs of the state’.³⁰ The dilemma he specifies
remains, and our ability to negotiate these issues must be deemed ‘irretrievably
problematic’.³¹ But—and here is one value judgment that clearly underpins the
pure theory—maintaining this prudential discourse of political right is an essen-
tial precondition of our ability successfully to make those negotiations.
³⁰ Jean-Jacques Rousseau, Discourse on Political Economy [1756] in The Social Contract and
other later political writings Victor Gourevitch (ed) (Cambridge: Cambridge University Press,
1997), vol 2, 3–38, 20.
³¹ Dunn, ‘Reconceiving the Content and Character of Modern Political Community’, above
n 29, 215.
PA RT I
OR IGI NS
1
Medieval Origins
Public law is formed as a distinct field of knowledge alongside the emergence

of the modern state. But since the process by which the modern state came into
being is scarcely straightforward, tracing the emergence of an autonomous con-
ception of public law is similarly riddled with ambiguities. No clear break in
thought between the medieval and the modern exists. Just as the modern idea
of the state was shaped from ‘a rearrangement of the components of a medieval
realm upon all of which tireless thought had been expended’, much the same can
be said about the formation of a modern concept of public law. Although every-
thing was ‘vaguely familiar’, ‘nothing was recognizably the same’.¹
The modern idea of the state evolved through a process of continuous innova-
tion in western European thought and practice between the twelfth and seven-
teenth centuries, a period in which government was recognized to be something
separate from the folkways of the community and was in need of permanent
institutions for the fulfilment of its tasks.² When tracing the juristic aspects of
this process of state formation, however, we must travel back further still. We
need in particular to examine the ways in which the exercise of lawful authority
to rule became bound up with theological questions.
In this chapter, we consider the ways in which theological and political issues
were, during the Middle Ages, intertwined. Looming over all these discussions
was the powerful influence of a highly sophisticated body of jurisprudence that
had been developed by canon lawyers to explain how the Roman church, and in
particular its governing arrangements, was to be understood. Borrowing from
Roman law, the canon lawyers elaborated the juristic character of the papacy
as an imperial structure. From their work, many of the most basic concepts of
modern public law, such as office, jurisdiction, and the corporate nature of collec-
tive association, were forged. This elaborate juristic edifice became the medium
through which the political struggles between papacy, emperor, and princes
were fought out. Those various political struggles invoked competing claims of
the descending and ascending themes of government and of sacred and secular
¹ Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 198.

² See Joseph R Strayer, On the Medieval Origins of the Modern State (Princeton, NJ: Princeton
University Press, 1970); Alan Harding, Medieval Law and the Foundations of the State (Oxford:
Oxford University Press, 2002).
18 Medieval Origins
sources of authority, and these basic political struggles were refracted through
the elaborate languages of divine law, Roman law, canon law, natural law, and
common law. The modern concept of public law acquired its basic grammar and
vocabulary from the bits and pieces of this rich ideological battlefield. Public law
cannot adequately be understood outside the frame of these earlier struggles.
I. The Theological-Political Question
The notion that original power is located in a supreme being who has dele-
gated it to earthly representatives has exerted a major influence in the history of
government. Th is theocratic foundation, which Ullmann calls the descending
theme of government,³ received its most authoritative and dogmatic expression
in the doctrine of the Roman church. Given the Roman church’s influence over
the evolving arrangements of secular government, its doctrines form a vital
strand in understanding the origins of public law. Manent even suggests that
the ‘theological-political problem’ provides the key to European political his-
tory; for Manent, ‘the political development of Europe is understandable only
as the history of answers to problems posed by the Church’.⁴ If this is the case
with respect to political history in general, it is all the more so when seeking to
explain the juristic basis of governing authority.
The originating moment is easily identifiable: the ‘theological-political prob-
lem’ in European political history stems from the decree in 380ce that made
Christianity the official religion of the Roman Empire.⁵ This decree ensured that
the Church would acquire an amalgam of functions, both religious and secular.
Being impressed with the obligation of overseeing and guiding all human action,
including the actions of rulers, the Church was drawn to claim the supreme
power. Since the Middle Ages was a period in which public affairs were deliber-
ated upon through the medium of law,⁶ we should not be surprised to see that this
body of nascent public law was invariably suff used with Christological themes.
In tracing the main themes of this history, the aim is not only to impart some-
thing about the origins of public law. It is intended also to raise a question about
its character. In the modern era, questions of religious belief have been relegated
to a private sphere and matters of politics, state, and law form an autonomous
sphere of public life. The clarity of this division between medieval and modern
³ Walter Ullmann, Principles of Government and Politics in the Middle Ages (London: Methuen,
1961), Introduction.
⁴ Pierre Manent, An Intellectual History of Liberalism Rebecca Balinski (trans) (Princeton, NJ:
Princeton University Press, 1995), 4.
⁵ This was effected by the decree, Cunctos populos, made by the emperors Valentinian II and
Theodosius I.
⁶ FW Maitland, Collected Papers HAL Fisher (ed) (Cambridge: Cambridge University Press,
1911), vol 3, xxxvii: ‘In the Middle Ages . . . .[l]aw was the point where life and logic met’.
must here be placed in question. An inquiry into the foundations of governmen-

tal authority inevitably brings us to rudimentary issues of belief. It reminds us of
the extent to which the symbolic remains a powerful source of social and political
power. Theological questions—driven by an appeal to the power of the One, and
by the need to mediate both between the visible and the invisible and between
the temporal and the eternal—pervaded all discussion of lawful governmental
authority in the medieval world. And although fundamental changes in belief
have occurred in the modern world, the extent to which these impulses live on
in the guise of new beliefs and representations remains in question today. This
inquiry into the medieval origins of public law is not, then, an exercise in retriev-
ing the past for its own sake. The question at issue is: to what extent do religious
and symbolic impulses—often bound up in the search for the law beyond law
(the jus of lex)—continue to permeate the subject?
II. The Papal Monarchy
Christian doctrine has been shaped by two fundamental theological axioms. The
first is the ‘fall of man’: Adam and Eve’s ejection from the Garden of Eden. This
act, resulting from original sin, led to the loss of God’s friendship and the neces-
sity of living in a world underpinned by the existence of evil. The second is that
of Christ’s incarnation. Having atoned for humanity’s sinfulness by his death
on the cross, Christ founded the Church and this alone provides the means of
human salvation.⁷ These two axioms of Christianity, rooted in the old and new
testaments respectively, form the central tenets of the Church. But the Church
has performed a much more powerful role than that of giving expression to a
set of common beliefs and offering spiritual guidance. As a body of the faithful
(congregatio fidelium), the Church was in need of government.
The shape that early church government took was profoundly influenced by the
ideology and authority structure of the Roman Empire. Since law was a primary
means of shaping the authority structure of the Empire, it is not surprising to find
that, after having been adopted as the official religion of the Empire, Christian
doctrine also came to be expressed in juristic terms. One particularly influen-
tial factor was the fact that during the late-fourth century, just as Christianity
came to be officially adopted as the religion of the Roman Empire, St Jerome was
completing the Vulgate, the Latin translation of the Hebrew and Greek Bible.
Not only did Jerome’s translation express the language of the educated Roman
classes of the fourth century, the translation also ‘contained terms and notions
which closely corresponded to the language of the Roman jurists’.⁸ To those who
were influential in shaping the Latin form of Christian doctrine ‘the relations
⁷ See Karl Löwith, Meaning in History (Chicago: University of Chicago Press, 1949), ch 9.
⁸ Walter Ullmann, Medieval Political Thought (Harmondsworth: Penguin, 1975), 21.
20 Medieval Origins
between God and man were legal relations, conceived in the framework of rights
and duties and moulded into a Roman jurisprudential scheme’.⁹ The Church as a
congregatio fidelium was conceived in corporational terms and its mode of govern-
ment closely paralleled the structure of imperial authority.
The authority of the pope thus came to be defined juristically, and the govern-
ment of the Church to be exercised through the instrumentality of law. Popes
began ‘to imitate imperial rescripts by issuing decretals (that is, letters which
determined matters authoritatively)’.¹⁰ The principal biblical source of this
authority is in the gospel of Matthew xvi.18–19:
Thou art Peter, and upon this rock I will build my church . . . And I will give unto thee the
keys of the kingdom of heaven: and whatsoever thou shalt bind on earth shall be bound
in heaven: and whatsoever thou shalt loose on earth shall be loosed in heaven.
Matthew’s statement is ambiguous. Is the rock St Peter? Does the rock signify
Peter’s faith or Christ’s truth? Does the statement carry a spiritual or jurisdic-
tional meaning? But in the hands of Pope Leo I, a Roman lawyer by training,
the passage was vested with an authoritative meaning. Leo (440–461) ruled
that the Matthean text established the Church as a society of Christians—in
Roman law terms, a corporation—and authorized a distinctive type of govern-
ing structure.
By this ruling, Church government was established as a monarchy, with St
Peter being vested with the power of rule and the pope acting as the ‘unworthy
heir of St Peter’ (indignus haeres beati Petri). This latter formulation was greatly
influenced by the Roman law of inheritance, and in particular by the principle
of universal succession in accordance with which an heir is vested with the legal
status of the deceased. Leo sought to demonstrate that each pope succeeded to
the full jurisdictional authority of Petrine powers: however personally unwor-
thy, the pope stood in the shoes of St Peter. It is on the basis of Leo’s formula-
tion that the distinction between the person and the office—perhaps the most
fundamental in the development of public law—has been drawn. The personal
characteristics of particular popes are of no relevance: once installed, his decrees
have binding authority by virtue of the office he occupies. Being the inheritance
of an office, Leo also determined that the Petrine powers could not in any way
be modified or diminished by particular popes. Leo expressed this principle by
ruling that each pope succeeds St Peter directly and without intermediaries. In
the office of the papacy, the pope does not simply possess those governmental
powers transmitted by his predecessors. The pope possesses what Leo called the
‘plenitude of power’ (plenitudo potestatis).¹¹
⁹ Ibid.
¹⁰ Joseph Canning, A History of Medieval Political Thought 300–1450 (London: Routledge,
1996), 30; Colin Morris, The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford:
Clarendon Press, 1989), 212–213.
¹¹ See Walter Ullmann, ‘Leo I and the theme of papal primacy’ (1960) 11(ns) Journal of
Theological Studies 25. Ullmann here reiterates the point that ‘within the precincts of the theme
This Leonine thesis rested on the contention that, in its governmental aspects,
the powers of the church come from its ‘builder’. As a body of the faithful, the
Church lacks original power. Power is located solely in the office of the papacy,
and such powers as officers of the Church possess are those which have been
conferred by the pope. Decrees of the pope cannot be challenged or appealed.
Their validity, moreover, has to be objectively determined: being a function of the
office, the personal attributes of the pope, whether benign or malevolent, have no
relevance to the question of the validity of the ruling. It follows that the congrega-
tio fidelium possesses no authority to restrict the pope’s powers or to remove him,
a proposition reflected in the principle of canon law that ‘the pope is judged by no
one’ (papa a nemine judicatur).¹² Here we find one of the earliest formulations of
the principle that the supreme authority of the (papal) ruler is vested not person-
ally but in the nature of his office.
By the end of the fifth century, the structure of church government had, in all
its essentials, become fi xed. It expressed a theocratic conception of government.
God, the pivot of the universe and source of all power, has vested earthly power
(‘the keys of the kingdom of heaven’) in the pope as God’s vicegerent to act as
the instrument of Christ and builder of his church. All power is delegated from
above.¹³ The pope exercised the powers of a monarch, standing outside and above
the church, with members of the Church being subject to his authority.¹⁴ All
offices of the Church are possessed as a matter of grace¹⁵ and in accordance with
the principle of concession from above.¹⁶ In the course of providing a theologi-
cal justification for this system of government, Denis (Dionysius) the Areopagite
coined the term ‘hierarchy’ for a system in which all ordering of inferior ranks
depended on superior ones and culminated in God, the ‘principle of unity’ and
guarantor of order in the world.¹⁷
of papal primacy Leo’s theology appeared in the garb of Roman jurisprudence: it is nothing
more and nothing less than juristic theology’ (ibid 33). More recent scholarship has suggested
that the term plenitudo potestatis was used by Leo to differentiate between the limited and full
authority of a papal legate and the pope himself and that it did not carry the broader jurisdic-
tional connotation until the thirteenth century. See JA Watt, The Theory of Papal Monarchy in
the Thirteenth Century: The Contribution of the Canonists (London: Burns & Oates, 1965), Pt
II; Kenneth Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth
Centuries (Philadelphia: University of Pennsylvania Press, 1984), 59; Canning, above n 10, 32.
¹² This doctrine was most authoritatively formulated in 1075 in Dictatus Papae, arts 18–21. See
Ewart Lewis, Medieval Political Ideas (New York: Knopf, 1954), ii, 38: ‘that his decision ought to
be reviewed by no one, and that he alone can review the decisions of everyone; that he ought to be
judged by no one’.
¹³ Romans xiii.1–2: ‘Let every soul be subject unto the higher powers. For there is no power but
of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth
the ordinance of God’. Note also Christ’s answer to Pilate: ‘Thou couldest have no power at all
against me, except it were given thee from above’ (John xix.11).
¹⁴ Jeremiah i.10: ‘I have this day set thee over the nations and over the kingdoms’.
¹⁵ I Corinthians xv.10: ‘But by the grace of God I am what I am’.
¹⁶ John iii.27: ‘A man can receive nothing, except it be given him from heaven’.
¹⁷ Denis is the name given to an anonymous Greek writer who purported to be St Paul’s dis-
ciple, and thus is generally known as Pseudo-Denis. See Ullmann, above n 3, 46–47; Canning,
above n 10, 32.
22 Medieval Origins
III. Empire and Papacy
The classical expression of Roman rulership was formulated in the Corpus Juris
Civilis, the codification of Roman law commissioned by Justinian in 527 and
completed in 534.¹⁸ The Corpus Juris reflects the fundamental distinction
in Roman law between public law and private law and although consisting
mainly of private law, it asserts an essentially theocratic conception of ruler-
ship.¹⁹ Being ‘lord of the world’,²⁰ the emperor is treated as occupying a divine
and universal office.²¹ The emperor maintains a position of superiority to the
laws,²² and is portrayed as being the representative of the ‘living law’.²³ His
will constitutes an expression of the law: ‘what pleases the prince has the force
of law’.²⁴
Christianity bolstered the authority of the Roman emperor largely because of
its monotheistic character.²⁵ For Roman rulers, the rejection of polytheism had
clear earthly implications, the most obvious of which is indicated by the adop-
tion, as a form of imperial theology, of the maxim, ‘one God, one Empire, one
Church’.²⁶ The image of the emperor provided by the Corpus Juris is convention-
ally described as Caesaropapist, an expression which suggests that the emperor
¹⁸ The Corpus Juris Civilis consists of three main parts: the Digest (or Pandects) which comprises
50 books containing general principles and a statement of private law assembled from the works
of the classical Roman jurisconsults; the Code, containing the imperial constitutions in 12 books;
and an introductory textbook, the Institutes. The laws made by Justinian until his death in 565
were collected as so-called Novellae (novae leges/new laws). By the twelfth century, the Novellae
was treated as a fourth part to the Corpus Juris. See PG Stein, ‘Roman Law’ in JH Burns (ed), The
Cambridge History of Medieval Political Thought, c.350–c.1450 (Cambridge: Cambridge University
Press, 1988), ch 3.
¹⁹ Coleman notes that being an emperor established in Constantinople, Justinian’s compilation
‘is that of an Eastern potentate’; we should therefore not be surprised ‘that the principles of absolut-
ist, theocratic, imperial rule stand shoulder to shoulder with principles that reflect older republican
and classical practices’: Janet Coleman, A History of Political Thought from the Middle Ages to the
Renaissance (Oxford: Blackwell, 2000), 34.
²⁰ D.14.2.9 (dominus mundi).
²¹ In the Constitutio Deo Auctore, Justinian describes himself as ‘governing under the author-
ity of God our empire which was delivered to us by His Heavenly Majesty’: see Justinian, Digest
Charles Henry Monro (trans) (London: Steens, 1904), vol 1, xiii.
²² D.1.3.31: Princeps legibus solutus est (the prince is not bound by the laws). See also D.32.[1].23,
Cod. 6.23.3, Inst. 2.17.8.
²³ Nov.105.2.4. (lex animata).
²⁴ D.1.4.1, Inst. 1.2.6 (quod principi placuit legis habet vigorem).
²⁵ It might thus be noted that the first title of the Code, ‘Of the Trinity and the Catholic Faith’,
instructs that all peoples should practise the faith which St Peter transmitted to the Romans
(Cod. 1.1.1).
²⁶ This became a recurrent motif in medieval thought, mainly in the form, un roi, une foi, une
loi: see William Farr Church, Constitutional Thought in Sixteenth-Century France (Cambridge,
MA: Harvard University Press, 1941), 79. When—notoriously—it was appropriated by the Nazis
(‘Ein Volk, ein Reich, ein Führer’) in the twentieth century, however, the flow of authority was
ambiguous.
III. Empire and Papacy 23
‘possessed divinely instituted supreme power within a unified entity of church

and empire’.²⁷
But if the ideology of imperial government was strengthened by the use of
Christian theology, so also did the authority of Roman law bolster the ideol-
ogy of papal government. Roman law ‘offered the most developed techniques
whereby unity under the sovereignty of central authority might be ensured; the
papacy was the first monarchy to exploit its services, and its lawyers the first
to develop a jurisprudence under its guidance’.²⁸ Th is association operated to
the benefit of both parties: the emperor was treated both as king and priest,
and the concept of the papal monarchy became entrenched within a Christian
empire.²⁹
The problem with this symbiotic arrangement was that, when pursued to
their logical ends, the positions of emperor and pope were not easily recon-
cilable. From the Christian perspective, the ruler exists and is equipped with
power because of the existence of evil in the world. In Paul’s words, ‘he beareth
not the sword in vain’; the ruler is ‘a revenger to execute wrath upon him that
doeth evil’.³⁰ But the tenet that the emperor’s rulership was the product of
divine grace opened the way for some form of papal intercession. And since,
from the Church’s perspective, the emperor was within the Church and not
above it, it followed that, at least in religious matters, the emperor was subject
to ecclesiastical authority. Medieval canon lawyers would later address this ten-
sion by the use of metaphor: alluding to the ancient antagonism between mind
and matter, they claimed that just as the soul is superior to the body, so too is
the pope above the emperor.³¹
Although his view was never accepted by imperial authority,³² Pope Gelasius
I (492–496) formulated a relatively precise division between secular and spir-
itual power.³³ Gelasius noted that ‘there are two things . . . by which this world
²⁷ Canning, above n 10, 14. Canning nevertheless acknowledges that recent scholarship has
questioned the aptness of the use of this term in the Byzantine context. It might also be noted that
once adopting Christianity, the Roman emperors shifted their self-conception from that of being
divine to being emperors by the grace of God: ‘emperors abandoned their claim to be true divinity
on earth and recognized instead in God the origin of their power’ (Ullmann, above n 3, 57).
²⁸ Watt, above n 11, 79; see also Morris, above n 10, 403: ‘the adoption at the curia of the
rescript style of government . . . showed a strong influence from Roman civil law’.
²⁹ In addition to the borrowings from Roman law, it might be noted that the ‘clothing of the
pope in the High Middle Ages followed that of the Byzantine emperors, hence the preponder-
ance of scarlet’ and institutionally ‘the Roman senate was the model for the college of cardinals’:
Ullmann, above n 3, 109.
³⁰ Romans xiii.4.
³¹ Walter Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London:
Methuen, 1949), 81–82.
³² Note, eg, the fate of Pope Martin I (649–655); having opposed Emperor Constans II’s
attempt to impose monotheletism (the doctrine that Christ as God and man has one will), he was
arrested, condemned for treason, deposed and exiled: see Canning, above n 10, 39.
³³ See JA Watt, ‘Spiritual and Temporal Powers’ in JH Burns (ed), The Cambridge History of
Medieval Political Thought c.350–c.1450 (Cambridge: Cambridge University Press, 1988), ch 14.
24 Medieval Origins
is principally governed: the consecrated authority of bishops (auctoritas sacrata
pontificum) and the royal power (regalis potestas)’.³⁴ He maintained that these two
powers, which exist in parallel, must observe their own limits and that since the
emperor ‘is the son, not the director of the church, and in so far as religion is
concerned, it befits him to learn, not teach’.³⁵ This Gelasian doctrine was to have
powerful resonances in the medieval political world.³⁶ Further, by drawing on
the authority of Roman constitutional law to interpret Gelasian doctrine, jurists
came to note that auctoritas (which was in principle indivisible) was higher than
mere potestas (which was capable of being divided).³⁷
But the status of these papal claims remained ambiguous, and the reality was
that popes were subjects of the empire. The tensions between Constantinople
and Rome remained indistinct, often simmering beneath the surface. Ullmann
argues that it was precisely to avoid these dangers to the Church’s position that
Pope Gregory I, at the beginning of the seventh century, turned towards the
West. The greatest potential for the Church to extend its influence, it was felt,
lay in the less well-developed systems of government of the Germanic nations
of the West. In the course of the following centuries, Latin became the lin-
gua franca of the West and the Bible acquired a status as the one book which
every literate person had studied. The Vulgate thus ‘played a most important
role in softening up of the fertile yet untilled soil of Western Europe, culti-
vating it for the reception of purely Roman ideas’ and was the vital text ‘that
so greatly contributed to the acceptance of the theocratic-descending thesis of
government’.³⁸
By the eighth century, the emperor in Constantinople no longer held much
power over the papacy. The Donation of Constantine, a forgery drafted in
Rome at some time between the mid-eighth and ninth centuries to bolster the
Church’s position against Byzantium, was later used to reinforce the claims of
the papal emperor in the West.³⁹ The stage was set for the formation of western
Europe.⁴⁰
³⁴ Letter addressed to Emperor Anastasius I in 494; cited in Canning, above n 10, 35.
³⁵ Cited in Canning, ibid, 36.
³⁶ See Strayer, above n 2, 102. Consider, eg, the parallel between Gelasian doctrine and the
formulation used by Sir Edward Coke CJ in asserting that although James as king is sovereign, he
does not possess jurisdiction to determine the meaning of the law: Prohibitions del Roy (1607) 12
Co Rep 63.
³⁷ See JB Morrall, Political Thought in Medieval Times (London: Hutchinson, 3rd edn, 1971),
10; Walter Ullmann, A Short History of the Papacy in the Middle Ages (London: Methuen, 1974),
54–57. Cf RL Benson, ‘The Gelasian doctrine: uses and transformations’ in George Makdisi,
Dominique Sourdel, and Janine Sourdel-Thomine (eds), La notion d’autorité au Moyen Age: Islam,
Byzance, Occident (Paris: Presses universitaires de France, 1982), 13–44.
³⁸ Ullmann, above n 8, 52.
³⁹ By this document, Constantine, when moving the seat of imperial authority to the East, pur-
ported to vest the imperial insignia of Rome to Pope Silvester I and his successors. See Ullmann,
above n 8, 59–63; Canning, above n 10, 73–74.
⁴⁰ See Jacques Le Goff, The Birth of Europe Janet Lloyd (trans) (Oxford: Blackwell, 2005), ch 2.
IV. Theocratic Kingship
We start with the concept of kingship. Kings had been detested in the Roman
world, largely because they had traditionally owed their position to some form
of election from within a representative body of the people. During the seventh
and eighth centuries, however, the idea of theocratic kingship began to emerge in
western Europe: kings came to be treated as having been conferred with the office
by the grace of God. This form of royal designation, used by Anglo-Saxon kings
from the late-seventh century,⁴¹ was symptomatic of a more fundamental change
in the nature of the office. This growing belief in the sacral character of king-
ship was greatly influenced by the juristic teachings of the Church. The idea that
kingship is a divinely ordained magistracy, primarily the work of clerics, power-
fully illustrates the extensive involvement by the Church in political matters.
The adoption of the idea of theocratic kingship throughout the Christian world
was an expression of the power of what Maitland calls ‘centripetal, Romipetal’
jurisprudence.⁴²
Theocratic kingship is founded on the claim that the source of royal power
flows from above. Power is derived from God, and the king, vested with the
responsibility of acting as God’s vicegerent on earth, is charged with maintain-
ing the peace, order, and good government of his kingdom. As protector of his
kingdom, the task of preserving order fell to the king alone.⁴³ Any disturbance of
the peace was taken to be an offence against the king himself and it was his sole
responsibility to take action against transgressors. The king similarly assumed
responsibility for ensuring the maintenance of a system of justice. As the fountain
of justice, judgment was ultimately a matter for the king, in accordance with
standards of his own devising.
This concept of kingship had the effect of removing the king from the people—
hence the formulation, ‘Your Highness’⁴⁴—and subjecting them to the royal will.
As it was conferred from above, the people played no role in bestowing power on
⁴¹ It might be noted, for example, that King Offa signed himself Dei gratia rex Merciorum: see
Ullmann, above n 3, 118.
⁴² FW Maitland, ‘William of Drogheda and the Universal Ordinary’ in his Roman Canon Law
in the Church of England: Six Essays (London: Methuen, 1898), ch 3, 105.
⁴³ Sir Frederick Pollock, ‘The King’s Peace’ in his Oxford Lectures and Other Discourses (London:
Macmillan, 1890), ch 3, 65: ‘ “Against the peace of Our Lady the Queen, her crown and dignity.”
Th is formula was once the necessary conclusion, as it is still the accustomed one, of every indict-
ment for a criminal offence preferred before the Queen’s justices’.
⁴⁴ Note also that the concept of ‘high treason’ strictly can apply only to offences committed
against the sovereign, who stands outside and above the people. This is reflected in the English his-
tory of the offence, as is explained in WS Holdsworth, A History of English Law (London: Methuen,
1925), vol 8, 307–333, esp 322: ‘At the time when the statute of Edward III was passed treason was
regarded rather as an offence against the person of the king than as an offence against the state. It
has never ceased to be an offence against the person of the king. In fact, since the Act of 1848, it
is only offences against the state which take the form of attempts against the person of the king,
which must be treated as treason’.
26 Medieval Origins
the king; the office was elevated above their concern. The people existed in a
relation of subjection to their king. Although the king conceded certain rights
to his subjects, these were matters of royal grace and favour. The people could
supplicate for royal measures, but the laws were given to the people by the king’s
authority; they were not made by them. Subjects enjoyed the protection of the
king, but since the king knew best the true interests of his subjects, they had no
right to resist the king’s command. Subjects owed a duty of allegiance to their
king. But the principal mark of the theocratic king was his standing above the
law. Maxims to the effect that ‘no writ runs against the king’ or that ‘the king
can do no wrong’ have their origins in this concept of kingship.
Although the consequences of this transfiguration in the nature of the office
of kingship were felt across the entire system of government, one particularly
important outcome is an enhanced significance of the concept of office. Initially
used interchangeably with such terms as dignitas and ministerium, during the
medieval period officium came to express the nature of the powers and duties
of public officers.⁴⁵ Officium therefore signified a position with some degree of
permanence; it assumed the status of an institution.⁴⁶ Officium also bestowed
distinction on the holder, conveying the almost paradoxical sense both of the
honour accorded the recipient and his personal unworthiness. In this way, offi-
cium established a refined, hierarchical gradation of positions, reflecting the rela-
tive standing of various offices.⁴⁷ The concept also conveyed the idea that holders
maintained no right to their position; they owed it entirely to the effluence of the
king’s grace.⁴⁸
The sacred character of the office of kingship received its most concrete expres-
sion in the rites of coronation. The coronation in Rome of Charlemagne as
Emperor of the Romans by Pope Leo III on Christmas Day, 800, marked the
decisive act in the transfer of imperial authority.⁴⁹ This ceremony, the authority
⁴⁵ See, eg, Hélène Millet and Peter Moraw, ‘Clerics in the State’ in Wolgang Reinhard (ed),
Power Elites and State Building (Oxford: Clarendon Press, 1996), ch 9, 179: ‘The . . . term, officium,
as transmitted by the ecclesiastical institutions which confided specific administrative tasks to
officers, drew concurrently upon the dual Roman and canonical tradition of disinterested serv-
ice to the public realm and to the common good’. For the Roman influence, see Myron Piper
Gilmore, Argument from Roman Law in Political Thought, 1200–1600 (Cambridge, MA: Harvard
University Press, 1941), ch 3. For the work of medieval publicists on the concept of office, see Peter
N Riesenberg, Inalienability of Sovereignty in Medieval Political Thought (New York: Columbia
University Press, 1956), ch 2. And for the importance of office in early-modern English thought,
see Conal Condren, Argument and Authority in Early-Modern England: The Presupposition of Oaths
and Offices (Cambridge: Cambridge University Press, 2006).
⁴⁶ See Udo Wolter, ‘The officium in Medieval Ecclesiastical Law as a Prototype of Modern
Administration’ in Antonio Padoa-Schioppa (ed), Legislation and Justice (Oxford: Clarendon Press,
1997), ch 2, 23.
⁴⁷ On this aspect of the office, see Charles Loyseau, A Treatise of Orders and Plain Dignities
[1610] Howell A Lloyd (trans) (Cambridge: Cambridge University Press, 1994).
⁴⁸ See Ullmann, above n 3, 136.
⁴⁹ François Louis Ganshof, The Imperial Coronation of Charlemagne: Theories and Facts
(Glasgow: Jackson, 1948).
for which was ostensibly derived from the Donation of Constantine,⁵⁰ effected
a transfer of the imperial crown from Byzantium to Rome. One innovation
assumed a particular significance: the inclusion for the first time of the sacra-
mental rite of unction, the pouring of holy oil on the king’s head.⁵¹ Following
a well-established biblical ritual, the anointing with chrism made the recipient
king over his people.⁵² The symbolism of unction, wherein God’s grace flowed
into the king, marked divine endorsement of the king’s right to rule.
Royal anointing rapidly established itself throughout western Europe as an
indispensable aspect of king-making.⁵³ It served the function of exalting the
king and expressing his divine right.⁵⁴ Notwithstanding the medieval belief that
royalty possessed a miraculous power to cure,⁵⁵ the objective of the rite was not
to make a priest of the king: it was intended to confer authority to wield the
⁵⁰ See above, n 39.

⁵¹ On the sacramental nature of anointing, see Fritz Kern, Kingship and Law in the Middle Ages
[1914] SB Chrimes (trans) (Oxford: Blackwell, 1948), 36: ‘Pope Gregory the Great . . . stat[ed] that
the consecration bestowed upon the secular authority was a “sacrament”. Sacramental doctrine
was still very fluid in the early Middle Ages. The Augustinian idea of sacrament allowed, and
even insisted, that all rites and usages which revealed to the faithful a supernatural gift of grace,
a sacra res, were to be conceived of as sacraments. When, from the twelfth century onwards, the
sacramental doctrines of the Church was [sic] defi ned, and the number of sacraments was limited,
monarchical consecration was, however, no longer included among them. But the three distinc-
tive features which medieval doctrine attributed to all sacraments, still belonged in some meas-
ure to royal consecration; and since the early Middle Ages, consecration had been regarded as a
distinct sacrament, it continued to be regarded as at least a quasi-sacrament in the well-defi ned
dogma of the Middle Ages. . . . Its external symbols were seen in the ministrations of the priest
who crowned and anointed; its inner efficacy was in the soul of the princely recipient; its outward
efficacy was manifested in the “character” that it conferred upon the person of the crowned and
anointed prince’.
⁵² See, eg, I Samuel x.1: ‘Then Samuel took a vial of oil, and poured it on his [Saul’s] head, and
kissed him, and said, Is it not because the Lord hath anointed thee to be captain over his inherit-
ance’. See also II Samuel ii.4: ‘they anointed David king over the house of Judah’; II Samuel v.3:
‘the elders of Israel came to the king . . . and they anointed David king over Israel’.
⁵³ See Janet L Nelson, ‘National Synods, Kingship as Office and Royal Anointing: an Early
Medieval Syndrome’ in her Politics and Ritual in Early Medieval Europe (London: Hambledon
Press, 1986), ch 10, 247–248: ‘I have . . . tried to establish good grounds for pinpointing the date at
which the rite [of royal anointing] was introduced in Spain to 672, in West Francia to 848, in East
Francia to 911, and in England to 973’. Nelson also notes that ‘The Anglo-Saxon Ælfric, writing
at the close of the tenth century . . . stated that ‘the king, after he is consecrated, then has dominion
over his people’ (ibid).
⁵⁴ William Shakespeare, Richard II, Act III, scene 2: ‘Not all the water in the rough rude sea/
Can wash the balm from an anointed king;/The breath of worldly men cannot depose/The deputy
elected by the Lord’.
⁵⁵ See Marc Bloch, The Royal Touch: Sacred Monarchy and Scrofula in England and France [1924]
JE Anderson (trans) (New York: Dorset Press, 1973). Bloch’s masterly account shows how, from the
eleventh and twelfth centuries, this power to cure scrofula by the royal touch, which was practised
by French and English kings, crystallized into a precise and stable institution. Its root cause was
‘the belief in the supernatural character of royalty’ (90) and it disappeared in England only after
the revolution of 1688 had placed on the throne a king who was a Calvinist, and thus viewed the
practice simply as superstition, and who also owed his position not to any sacred blood line but
simply to parliamentary choice.
28 Medieval Origins
sword.⁵⁶ And although Charlemagne himself had resisted many Romanist ideas,
his successors were not so determined.⁵⁷ Thus, when his grandson was crowned
in 823, Lothar I also received a sword from the hands of the pope, a gesture which
not only symbolized the belief that he received his strength from the pope but
also that the king was impressed with a duty to protect the pope.⁵⁸ Exaltation
was thus tempered with conditioning: if the sacral rites become constitutive of
the office, the same act which elevates the king above the people also exposes him
to challenge from the episcopacy as the medium through which he receives his
divine grace. Royal consecration reinforced the official character of kingship,⁵⁹
but as ‘guardians of that higher order in early medieval Christendom, the bishops
saw the royal office as an executive post, themselves as the directors of the
corporation’.⁶⁰ The king might be above the law, but he remained subject to
divine law.
V. Regnum and Sacerdotium
To modern eyes, the Holy Roman Empire—being neither holy, nor Roman, nor
an empire—was a strange edifice.⁶¹ Its peculiar character, Figgis noted, was ‘a
testimony to the most important characteristic of political thought till the close
of the seventeenth century—the belief in the intimate connection of politics and
religion’.⁶² Only by treating the empire as a theological-political formation can
we appreciate how such an apparently unworkable arrangement could ever have
functioned. The regime was based on a theoretical equality of pope and emperor:
‘Christ is the real head of the Empire, and Pope and Emperor are both conceived
⁵⁶ This is an aspect of the two sword theory, said to derive from Luke xxii.38, in which the
pope possessed two swords, spiritual and temporal. One signified the pope’s priestly power and
the other the coercive power. The pope was said to give the use of the temporal sword to the ruler
to act on the pope’s behalf. See, eg, John of Salisbury, Policraticus [c1154–1156] Cary Nederman
(ed) (Cambridge: Cambridge University Press, 1990), iv.3: ‘The sword is . . . accepted by the prince
from the hand of the Church . . . The prince is therefore a sort of minister of the priests and one who
exercises those features of the sacred duties that seem an indignity in the hands of priests’.
⁵⁷ See RW Southern, Western Society and the Church in the Middle Ages (London: Penguin,
1970), 99.
⁵⁸ See also Nelson, above n 53, 251: ‘King Edgar himself, addressing an Anglo-Saxon synod
in 967, expressed his readiness to take up “the sword of Constantine”, and to obey episcopal
commands’.
⁵⁹ See Meyer Fortes, ‘Ritual and Office in Tribal Society’ in Max Gluckman (ed), Essays on the
Ritual of Social Relations (Manchester: Manchester University Press, 1962), 53–70; Jack Goody,
‘Introduction’ in Goody (ed), Succession to High Office (Cambridge: Cambridge University Press,
1966), 21–23.
⁶⁰ Nelson, above n 53, 251.
⁶¹ See Peter H Wilson, The Holy Roman Empire, 1495–1806 (London: Macmillan, 1999);
Dietmar Willoweit, ‘The Holy Roman Empire as a Legal System’ in Padoa-Schioppa (ed), above n
46, 123–130.
⁶² John Neville Figgis, The Theory of the Divine Right of Kings (Cambridge: Cambridge
University Press, 1896), 39.
rather as executors armed with administrative powers than as themselves ultimate

authorities’.⁶³ The nature of this division can be grasped only once the kingdom
(regnum) and the priesthood (sacerdotium) are recognized to form parts of a single
body and that body, the respublica christiana, is seen as an essentially ecclesiologi-
cal entity.⁶⁴
The power of the hierocratic regime rested on the belief that all Christians
(the congregatio fidelium) belonged to a single corporate entity, the Ecclesia. Their
overriding duty was to ensure the Church’s preservation, not least because of its
role in acting as a katechon, that is, to restrain the emergence of evil and the com-
ing of the Antichrist.⁶⁵ The medieval church cannot therefore be treated as a reli-
gious organization which can be differentiated from the governmental. Bishops
and kings all formed integral parts of a single body politic: ‘inferiors cohere with
their superiors’, wrote John of Salisbury, and ‘in this way all the members are to
subject themselves to the head so that religion may be preserved intact’.⁶⁶ This
whole is something more than an aggregate of the individuals who comprise it;
the Ecclesia is more important than its members.
This conception is elaborated by Wilks, who shows how, in the work of the
papalists, the juridical person of the Roman respublica became transformed into
the mystical person of Christian society. The mystical person ‘is synonymous
with the legal fictitious person which the corpus mysticum of the Ecclesia forms’
and thus the ‘juridical reality of the lawyer corresponds to the metaphysical real-
ity of the philosopher and the divine reality of the theologian’.⁶⁷ By transpos-
ing the individual’s relationship with society into man’s relationship to God, the
whole is conceived as being not only greater than, but also prior to, its parts.
This notion of the corporate entity was often expressed in terms of the organo-
logical metaphor of the body politic, a metaphor most fully developed by John of
Salisbury. In Policraticus, John likened the prince to the head, the senate to the
heart, judges and provincial governors to the senses, the treasury to the stomach,
and the peasants to the feet.⁶⁸ This metaphor was also extended to include the
priesthood, likened to the soul. And, as the hierocrats were keen to emphasize,
the soul must govern the body.⁶⁹
⁶³ Ibid.
⁶⁴ John Neville Figgis, Political Thought from Gerson to Grotius, 1414–1625 (Cambridge:
Cambridge University Press, 2nd edn, 1931), 4: ‘In the Middle Ages the Church was not a State, it
was the State; the State or rather the civil authority (for a separate society was not recognised) was
merely the police department of the Church’.
⁶⁵ See Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum
Europaeum [1950] GL Ulmen (trans) (New York: Telos, 2003), 59–62.
⁶⁶ John of Salisbury, Policraticus, above n 56, vi.25.
⁶⁷ Michael Wilks, The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with
Augustinus Triumphus and the Publicists (Cambridge: Cambridge University Press, 1963), 25.
⁶⁸ John of Salisbury, Policraticus, above n 56, v.6,9,11,15.
⁶⁹ See above n 31. In the assessment of Nederman (above n 56, xxii–xxiii) John is not strictly a
hierocratic thinker: ‘Instead, he permits secular government to be conducted without direct inter-
ference by the Church. Like the soul in the body, he asserts, the priesthood fi xes the general aims of
30 Medieval Origins
When conceptualizing the Ecclesia, the head was accorded a special role. As
has been noted, the pope is the head of the corporation. All power is vested in
the pope in persona Ecclesiae; he is the fons et origio, the source from which all
rivers of power flow. But in the highly sophisticated writings of the hierocrats,
it was emphasized that once the entire community in a corporate sense is repre-
sented by one person, that person can also be equated with the corporation.⁷⁰
The head is thus ‘the microcosm, in which is reflected the total ordering of the
world’ and the pope can be described as ‘both head and whole of the commu-
nity in the same way as Christ is not only the caput Ecclesiae but also forms the
corpus Ecclesiae itself ’.⁷¹ Inclusion of all in one entailed the supremacy of one
over all.
The term used by Ullmann to express this juristic theology is ‘petrinology’.⁷²
The rock on which the respublica christiana was founded is that of the papacy.
This papal-hierocratic system, Ullmann notes, was ‘not only logically flawless,
but [was] also superbly attuned to the christocentric medieval period’ and the
conception of law underpinning the petrinological regime ‘was one whose lofti-
ness could not be surpassed’.⁷³ ‘Anyone dealing with the medieval papacy’, he
continues, ‘must be impressed by the cogency, consistency and logicality of the
papal principles of government. They presented a veritable system of governmen-
tal principles . . . a true Staatsrechtssystem’.⁷⁴
the healthy political organism (namely, the conditions necessary for salvation). But the head of the
body is responsible for ensuring and supervising the actual physical welfare of the organism as it
pursues its path through life. Thus, there exists a common good within the community unique and
distinct from, although conducive to, the ultimate spiritual end of salvation’.
⁷⁰ Th is basic principle of canon law is to be found in Gratian’s Concordia discordantium can-
onum (Concordance of Discordant Canons). Produced at Bologna in c1140, and generally referred
to as the Decretum, this work became the standard handbook on canon law and the basis for the
attempt ‘to provide an appropriate juridical formulation for the ancient theological doctrine of the
church as . . . an ordered community of the faithful’: Brian Tierney, Religion, Law, and the Growth
of Constitutional Thought, 1150–1650 (Cambridge: Cambridge University Press, 1982), 13. The
Decretum refers to the principle that ‘the bishop is in the Church, and the Church is in the bishop’
(c.7, C.VIII, q.1). But the principal source of this type of inversion is the fourth gospel: ‘I am in the
Father, and the Father is in me’ (John, xiv.10).
⁷¹ Wilks, above n 67, 31.
⁷² For details of the main principles, see Walter Ullmann, The Growth of Papal Government in
the Middle Ages: A Study in the Ideological Relation of Clerical to Lay Power (London: Methuen, 3rd
edn, 1970), ch 1.
⁷³ Ullmann, above n 3, 94.
⁷⁴ Ibid, 108. See also Southern, above n 57, 102–103: ‘There are no words which convey the
spirit of the medieval papacy so brilliantly as the trenchant statements of the papal position
inserted in the volume of Gregory VII’s letters . . . Among these statements we find the following:
the pope can be judged by no one; the Roman church has never erred and never will err till the
end of time; . . . the pope alone can depose and restore bishops; he alone can make new laws . . . ; he
alone can revise his own judgements; he can depose emperors . . . Taken as a whole these statements
comprise a complete programme of action. They imply nothing less than a total papal sovereignty
in all the affairs of the Christian community. . . . When we compare these statements with other
great programmes of action—Magna Carta, the Bill of Rights, the American Constitution, the
Communist Manifesto—we may think that only the latest of these documents has had so pro-
found an effect on the practical affairs of many nations’.
Notwithstanding the emergence of the idea of theocratic kingship, none of

the governmental systems of Europe could match the erudition of the papal
hierocratic regime. Although kings bolstered their authority by appeals to the
Bible, none was able to claim an authoritative title such as that possessed by
the pope. Living within the respublica christiana, kings were subject to God’s
law and, unlike the pope, they could not claim a plenitude of power. The papal
curia thus became the ‘omnicompetent court of first instance for the whole of
Christendom’.⁷⁵ But papal power was not founded solely on the sophistication of
its cosmology: the fact is that during the eleventh and twelfth centuries no king
was able to rule his kingdom without the extensive participation of the higher
clergy. It was the clerics, the only educated class in the kingdom, who staffed the
chanceries of the kingdoms of Europe.⁷⁶ These clerics were not only the judges,
administrators, and specialists in legal drafting,⁷⁷ but were also trusted advisers
of the king.⁷⁸ To lose their support ‘would have been tantamount to a modern
government’s losing control over its army or its public revenue’.⁷⁹ Trained in the
sophisticated Romanist methods of canon law, they were skilled technicians of
the hierocratic regime⁸⁰ and, through the power of the lingua franca of Latin,
agents of imperial integration.⁸¹
⁷⁵ Maitland, above n 42, 104. See also Coleman, above n 19, 32–33: ‘the legal and judicial appa-
ratus of the Roman church’s curia became increasingly elaborate in order to deal with what was
becoming an overwhelming workload. The officials at the Roman curia dealt with church organ-
ization across Europe . . . By the thirteenth century, Roman primacy had been realized in practice
by legal means, in the universal jurisdiction of the pope and in papal legislation which developed
from his jurisdiction’.
⁷⁶ See Millet and Moraw, above n 45. The authors note that ‘in mid-thirteenth-century France
and England, the apparently contradictory expression clericus regis appeared: those who bore
this title were indeed clerics but, instead of serving the Church, they worked for the temporal
powers’ (at 173). Note in particular the career of Thomas Becket who moved effortlessly between
service to church and king, becoming Henry II’s chancellor before being appointed Archbishop
of Canterbury. Tierney (above n 70, 10) notes that Becket’s career ‘was unusual only in its
dénouement’.
⁷⁷ Millet and Moraw note that in England ‘in the thirteenth century, most of the Justices of the
King’s Bench and Court of Common Pleas were clerics’: above n 45, 178.
⁷⁸ The chancellor remained the principal executive officer of the king and council for much of
the middle ages: ‘In England, he [the chancellor] remained a key figure for a long time: Cardinal
Wolsey’s role was that of chief minister to Henry VIII as long as he was able to retain the king’s
confidence, because his status was reinforced by his ecclesiastical pre-eminence. . . . After Wolsey,
the kings of England no longer called upon clerics to occupy the position of chancellor or keeper
of the seals, with only two exceptions: Stephen Gardiner (1553–5) and John Williams (1621–5)’
(Millet and Moraw, ibid, 176, 177).
⁷⁹ Walter Ullmann, Medieval Foundations of Renaissance Humanism (London: Elek, 1977), 34.
⁸⁰ Strayer, above n 2, 16: ‘The fact that churchmen were deeply involved in secular politics, that
no ruler could function without their advice and assistance, meant that the political theories and
the administrative techniques of the Church had a direct impact on lay government’.
⁸¹ See Françoise Waquet, Latin or the Empire of a Sign: From the Sixteenth to the Twentieth Centu-
ries John Howe (trans) (London: Verso, 2001), esp ch 2. Cf Chateaubriand, Génie du christianisme
[1802] (cited in Waquet, ibid, 63–64): ‘We believe that an ancient and mysterious language, a
language that has ceased to change over the centuries, is pretty well suited to the worship of the
eternal, incomprehensible and immutable being. And since consciousness of our sufferings forces
32 Medieval Origins
So long as the emperor operated within this framework of ecclesiological
thought, it proved exceedingly difficult for him to extend his claims against the
papacy. That inevitable struggle initially took place over a range of subsidiary
issues: the right of kings to tax clerical subjects and jurisdictional disputes over
civil and canon law courts, and over the right of episcopal appointment. The last,
the control of the episcopacy, was an essential aspect of the papal-monarchical
claim, but effective kingship similarly required the allegiance of its officers. This
dispute came to a head with the Investiture Contest, the struggle between papacy
and princes for control over the bishops. The contest, which stretched from 1075
to 1122, proceeded in stages, with bishops required to take an oath of papal alle-
giance, and jurisdictional control strengthened by requiring bishops to make reg-
ular visits to Rome. It came ultimately to focus on the issue of lay investiture of
ecclesiastical offices, a dispute which caused Pope Gregory VII in 1076 to depose
the German king, Henry IV. This act caused Henry to petition as a penitent at
Canossa in the following year, and eventually in 1083–1084 for Henry to fight
his way to Rome and install Clement III as pope.⁸²
The Investiture Contest exposed many of the tensions between rex and sacer-
dotus, with Henry appealing to theocratic notions of kingship—‘Me, the Lord’s
anointed, you have dared to touch’—apparently without recognizing that this
exposed him to attack on the ground that he claimed this grace only through the
intercession of properly established ecclesiastical officers. Relying on the papal
plenitude of power, Gregory had the authority of divine law on his side,⁸³ and
to Henry’s claim that he was only acting in accordance with established custom,
was able to reply that: ‘The Lord did not say “I am custom” but “I am truth” ’.
But the contest should not be construed as a conflict between church and state.
It was a jurisdictional struggle between the regnum and sacerdotium fought out
within the single body of the respublica christiana. The struggle took place within
an ecclesiological framework, and while that remained the case, there was little
prospect of lay rulers successfully asserting their supremacy. And until this was
achieved, no concept of public law could emerge.
VI. Conciliarism
The later Middle Ages were marked by perpetual struggle, as popes, emperors,
bishops, and kings all vied for a greater share of governing authority. Underlying
us to raise a suppliant voice to the King of Kings, is it not natural for us to speak to Him in the finest
idiom on earth, the one used by grovelling nations to address their prayers to the Caesars?’
⁸² See Canning, above n 10, 89–94; James Viscount Bryce, The Holy Roman Empire (London:
Macmillan, rev edn, 1928), ch10. On the English dimension, see Norman F Cantor, Church,
Kingship, and Lay Investiture in England, 1089–1135 (Princeton, NJ: Princeton University Press,
1958).
⁸³ Jeremiah, i.10: ‘I have this day set thee over the nations and over the kingdoms, to root out,
and to pull down, and to destroy, and to throw down, and to build, and to plant’.
VI. Conciliarism 33
these political struggles over the rightful allocation of authority lay a more fun-
damental question concerning the very nature of order. By the fourteenth cen-
tury, two different conceptions of order were evident: a universal order under
papal and imperial direction, and an emerging system of European kingdoms
whose rulers acknowledged no superiors. The contest between pope and emperor
was important. But unless the hierocratic conception of the respublica christiana
could be dislodged from its secure habitation, the claims of secular rulers, whether
emperor or king, were unlikely to succeed.
Th is question of order first became the subject of dispute within the frame-
work of ecclesiological thought. The basis of an alternative conception of soci-
ety to that of the hierocratic conception was laid in the thirteenth century.
Stimulated by the rediscovery of the works of Aristotle, writers such as Thomas
Aquinas, William of Ockham, and Marsiglio of Padua devised systems of phi-
losophy based on inductive rather than deductive principles, and on naturalis-
tic rather than divine premisses. Aristotelian principles provided the basis for
an anthropocentric theory of society, in which man is a social animal, soci-
ety is a human institution, and the end of life is evaluated in purely temporal
terms. The implications of this theory for the hierocratic view were profound.
Most importantly, the temporal and the spiritual were no longer conceived as
existing in a hierarchical relationship expressing a single universal order, but as
forming distinct and separate planes of existence. These scholars—the medi-
eval publicists—did not deny the existence of God. But by using Aristotelian
precepts they were able to argue that earthly and heavenly matters—the politi-
cal and spiritual spheres—had to be measured by different standards. Since
nothing could be proved about God through the exercise of natural reason,
God must ultimately be viewed as an object of faith.
The political implications of this movement were revolutionary. Although the
Ecclesia continued to be recognized as a congregatio fidelium, it came to be con-
ceived as a purely spiritual entity rather than the expression of political society.
John of Paris, one of the most distinguished of the publicists, argued that those
who sought to make the regnum Christi a temporal and political structure of gov-
ernment were committing the error Herodis: this was precisely what Herod had
mistakenly feared.⁸⁴ Christ ruled the world by faith alone, John argued, and one
must not attribute any greater power to his vicar.
Th is new mode of thought led to the claim that, rather than being conceived
as existing on a higher plane of reality, the Ecclesia should be treated simply as
an abstraction—a nomen, or word without substance—which had been super-
imposed on the material reality of individual existence.⁸⁵ As Wilks empha-
sizes, it was the earthbound character of this philosophy of nominalism rather
than the precise details of the publicists’ political thought which threatened
⁸⁴ John of Paris, On Royal and Papal Power (Tractatus de potestate regia et papali [1302]), Arthur
P Monahan (trans) (New York: Columbia University Press, 1974), ch 9, 36.
⁸⁵ For a summary of Ockham’s nominalism, see Coleman, above n 19, 172–175.
34 Medieval Origins
the papal-hierocratic system of government.⁸⁶ The implications of the
publicists’ argument were that man not God lay at the centre of the universe,
that political authority rested in the community, that the purpose of
government was to meet human needs rather than God’s designs, and—in
the work of Marsiglio at least—that religion was invented for the necessary
political function of preserving peace in the community.⁸⁷
The main responsibility for bringing Aristotelian principles into alignment
with the church’s teachings had been entrusted to the leading Dominican
scholar, Aquinas. Aquinas tried to effect a reconciliation between reason and
faith, and between human and divine law. The principal difficulty for the hiero-
crats was that Aristotle’s teachings had led to the revival of natural law. Founded
on the identification of fundamental precepts of right conduct, natural law led
almost inevitably to a notion of limited rulership.⁸⁸ Relying on the fact that both
descending and ascending theories of government assumed one head of political
society, Aquinas argued that the Ecclesia signified the combination of the pope
and the congregatio fidelium and that the Ecclesia must exist as an entity separate
from its individual members. As head of the Church, the pope represented the
Ecclesia. But the papal will could be expressed in various forms, and the Thomists
argued that the highest expression of will is that of the pope acting in concert
with the Church, as represented by a council. Thomist principles thus paved the
way for conciliarist theories of church government.
These theories came to prominence as a result of the great schism in the late-
fourteenth century,⁸⁹ but their origins lay in the canonist glosses of the twelfth
and thirteenth centuries. They probed far beyond that particular crisis to the
fundamentals of ecclesiastical authority.⁹⁰ At the core of conciliar theory lay the
⁸⁶ Wilks, above n 67, 95–96.

⁸⁷ Marsilius of Padua, The Defender of Peace (Defensor pacis [1324]), Alan Gewirth (trans)
(Toronto: University of Toronto Press, 1980), I.v.11.
⁸⁸ Aquinas, De Regimine Principum (On Princely Government) in his Selected Political Writings
AP D’Entrèves (intro) JG Dawson (trans) (Oxford: Blackwell, 1948), 1, 7: ‘In each man it is the
soul which controls the body, and within the soul itself reason controls the faculties of passion and
desire. Lastly, among the members of the body itself one is the principal moving all the others:
some say it is the heart, but others the head. So in all multiplicity there must be some controlling
principle’. For Aquinas, that controlling principle is monarchy: ‘The bees have one king, and in the
whole universe there is one God, Creator and Lord of all. And this is quite according to reason: for
all plurality derives from unity’ (at 13).
⁸⁹ The great schism was triggered as a result of the decision of the college of cardinals in 1378
to revoke the election, four months previously, of Urban VI and to elect in his place Clement VII.
Neither pope was able to acquire universal allegiance. Urban had difficulties in maintaining him-
self in Rome, while Clement had established a rival curia at Avignon. The resulting chaos provided
a fertile environment for addressing some basic questions about the nature and structure of eccle-
siastical authority. See Walter Ullmann, Origins of the Great Schism: a study in fourteenth-century
ecclesiastical history (London: Burns, Oates & Washburn, 1948); JB Morrall, Gerson and the Great
Schism (Manchester: Manchester University Press, 1960); Canning, above n 10, 174–184; Le Goff,
above n 40, 169–171.
⁹⁰ See Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval
Canonists from Gratian to the Great Schism (Cambridge: Cambridge University Press, 1955).
VI. Conciliarism 35
belief that the pope was not an absolute ruler. But this conviction was not explic-
itly stated. As Cardinal Zabarella put it: ‘The pope has plenitude of power not as
an individual but as head of a corporation so that the power is in the corporate
whole as its foundation and in the pope as the principal minister through whom
it is exercised’.⁹¹ Taking forward the work of Aquinas, Ptolemy of Lucca had
contrasted three theories of government: despotic theory, in which the monarch
is legibus solutus and makes law for his subjects; politic kingship, in which the
ruler derives his authority from the people and is subject to the laws that they
authorize; and what he called dominium regale et politicum, combining features of
both.⁹² Zabarella was articulating the third of these conceptions, and it was this
conception of government that inspired the conciliarist argument.
The conciliarists acknowledged that the authority of the pope was greater than
that of any other individual office-holder. What they did not accept was that papal
authority exceeded that of the corporate whole.⁹³ That is, they drew a distinction
between the universal church, the congregatio fidelium, and the Roman church, as
personified by the pope, contending that ultimate authority rested in the whole.
The conciliarists were able to challenge the structure of hierocratic power pri-
marily by developing sophisticated notions of representation. Representation,
they argued, meant more than mere personification of authority in the pope. It
implied the conferral of authority by the congregatio fidelium, an authority which,
if abused, could be withdrawn.⁹⁴
⁹¹ Franciscus Zabarella, Tractatus de schismate [1408]; cited in Tierney, above n 70, 58–59. See
also Tierney, above n 90, III.iv.
⁹² Ptolemy of Lucca, On the Government of Rulers: De regimine principum James M Blythe
(trans) (Philadelphia: University of Pennsylvania Press, 1997), Bk 3, 20: ‘A comparison of imperial
lordship to regal and political lordship and how it accords with both’ (Hic habitis videnda est comp-
aratio imperialis dominii ad regale et politicum). Note that this book is, in essence, books ii–iv of
Acquinas’ De regimine principum which Ptolemy completed in c1301–1303. Cf Giles of Rome, De
regimine principum [c1285], II.1.14 who distinguished between what he called a regimen regale and
a regimen politicum, between a ruler who governs according to his own will and a ruler who governs
according to laws instituted by citizens and in accordance with their own customary arrangements:
see Coleman, above n 19, 70; James M Blythe, Ideal Government and the Mixed Constitution in the
Middle Ages (Princeton, NJ: Princeton University Press, 1992), ch 4.
⁹³ Althusius was later to express this in terms of the ruler being ‘supreme in relation to indi-
viduals. But he is not supreme in relation to the subjects collectively’: Johannes Althusius, Politica:
Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples [1603] Frederick S
Carney (trans and ed) (Indianapolis: Liberty Fund, 1995), 120.
⁹⁴ See Nicolas of Cusa, The Catholic Concordance [1433–1434] Paul E Sigmund (ed) (Cambridge:
Cambridge University Press, 1991). The argument was underpinned by the work of William of
Ockham who, in the 1340s, had sought to demonstrate that the papal-hierocratic system rested on
a heretical theory of power: see William of Ockham, A Short Discourse on Tyrannical Government
[c1340s] John Kilcullen (trans), Arthur Stephen McGrade (ed) (Cambridge: Cambridge University
Press, 1992). Ockham here seeks to show that ‘papal rule was . . . not set up by Christ for the pope’s
own sake, but for the faithful’ (ii.5); that ‘the pope is only a steward’ and ‘does not have power
except in things which are of equity’ (ii.6); and that ‘it does not belong to the pope’s office to
involve himself in secular business’ (ii.7). For biblical support, it might be noted that, after hav-
ing said to Peter, ‘I will give unto thee the keys to the kingdom of heaven’, Christ repeated those
words to all the apostles: Matthew, xviii.18. See also Luke, ix.1: ‘Then he called his twelve disciples
together, and gave them the power and authority over all devils and to cure diseases’.
36 Medieval Origins
Although clearly influenced by the condemned heretics, Ockham and

Marsiglio, it would be wrong to assume that conciliar theory marked a radical
departure from the theological traditions of the church.⁹⁵ Tierney has shown
how much the sources of conciliarism are to be found in the richness and diversity
of canonistic theories.⁹⁶ However extensive the powers vested in the pope were
conceived to be, canonist writing never lost sight of the idea that such powers
were conferred for the good of the Church. The distinction between the univer-
sal church (congregatio fidelium) and the local church (Romana ecclesia) was well
understood by the canonists. So too was the need to develop theories not only of
the relationship between the pope and the cardinals but also between the pope
and cardinals and that of the universal church.⁹⁷ What Tierney shows is that the
motivating force of the canonists during the debates concerning the schism was
to maintain unity in the Church. He argues that ‘the more radical conciliarists
attacked the whole system of papal centralization because they believed that a
survival of that system could no longer provide an effective guarantee of perma-
nent unity’.⁹⁸
The conciliarists maintained the belief that all power had its source in God;
their innovation was to argue that on earth this power is channelled through
ruler and people. Rather than constituting a personification of that power, the
pope held a representative office of the Church. The Pope still possessed a pleni-
tude of power and was thus freed from the laws, but the Roman maxim princeps
legibus solutus est was now intended to refer mainly to his dispensing power, or
a power to act of necessity in exceptional circumstances. By contrast, since the
general council comprised the various members of the Church’s hierarchy, it was
this body that was held to incorporate all the legitimate power of the Church.
The general council—the representative assembly of the faithful—was the final
source of ecclesiastical authority.
The implication of the conciliarists’ argument was that if the pope sought to
legislate concerning the status eccelesiae, he was first obliged to summon a new
council. In developing this principle, they made creative use of the Roman law
maxim, quod omnes tangit, ab omnibus comprobetur (what touches all must be
approved by all).⁹⁹ The conciliarists also contended that in the extreme case of
⁹⁵ This is not to deny that there were radical dimensions of the movement. Figgis, for example,
referred to the decree issued at the Council of Constance in 1415 and which declared that the gen-
eral council represented the Church on earth and held ultimate authority, to be ‘probably the most
revolutionary official document in the history of the world’: Figgis, above n 64, 31.
⁹⁶ Tierney, above n 90. See also Tierney, above n 70, Introduction, who contends that while
Figgis (above, n 95) was right to highlight the subsequent influence of conciliarist writings on
secular constitutional theory, he was wrong to claim that conciliarism had its origins simply in a
reaction to the canonist theory of absolute papal sovereignty.
⁹⁷ Tierney, above n 90, 68.
⁹⁸ Ibid, 240.
⁹⁹ Cod. 5.59.5. Th is principle was asserted in a constitution of Justinian concerning the rela-
tionship of guardian and ward: it requires that when a ward has several guardians certain acts
require the consent of all. It appears in the glosses of Huguccio, the greatest of the twelfth century
a pope abusing his powers and acting contrary to the nature of his office, he
could be removed by the general council. Conciliarist theories, and especially
the ascending theme of government that was implicit in their arguments, posed a
fundamental challenge to the entrenched theological-political formation.
As a movement for the reform of church government, conciliarism was hardly
an unqualified success. Once unity had been restored with the election of Pope
Martin V, its momentum dissipated. And once secular rulers came to appreciate
the potential impact of conciliar theories on the status of the monarchy, they too
began to side with the papacy.¹⁰⁰ But conciliarist ideas were to resurface and play
an influential role in the development of secular constitutional thought.
VII. The Secularization of Government
The growing tensions in medieval society revealed themselves not only within the
duality of the governmental framework but also within the hierarchical arrange-
ments of both regnum and sacerdotium. The juristic aspects of these tensions are
illuminating, especially as reflections on the conditions that led to the emergence
of modern nation-states.
These aspects are best illustrated by returning to the Investiture contro-
versy. The episode at Canossa¹⁰¹ had shown ‘the utter brittleness of the tradi-
tional theocratic rulership in the face of a well-aimed assault by the papacy on
the most vulnerable part of the contemporary royal system’.¹⁰² The weak link
in this system was ‘the absence of a body of law that was independent of any
Roman-ecclesiastical parentage’.¹⁰³ But after the twelfth century, secular studies
of Roman law in Bologna and beyond grew in importance and gradually built up
a body of royal law (lex regia) that did not rest on Christocentric principles. This
body of law was able to confront the claims of papal and imperial authority on
more equal terms. Amongst these jurists, Bartolus of Sassoferrato (1314–1357)
was pre-eminent. He conceded that the emperor is de jure the lord of the world,
but noted that there were many people who de facto did not obey him. Bartolus’
revolutionary move was to argue that the de facto situation is one which the sys-
tem of jurisprudence must be able to accommodate.¹⁰⁴ This methodological shift
Decretists, and was applied most actively in conciliarist thought by Guilielmus Durantis: see
Tierney, above n 90, 49, 190–195.
¹⁰⁰ Antony Black, Monarchy and Community: Political Ideas in the Later Conciliar Controversy,
1430–1450 (Cambridge: Cambridge University Press, 1970), 85–129.
¹⁰¹ See above n 82.
¹⁰² Ullmann, above n 79, 35.
¹⁰³ Ibid.
¹⁰⁴ Cecil N Sidney Woolf, Bartolus of Sassoferato: His Position in the History of Medieval Political
Thought (Cambridge: Cambridge University Press, 1913), 387: ‘Where Bartolus went beyond the
Glossators, he did so . . . because his object . . . was to evolve from his texts a law rather practically
acceptable than scientifically correct’. Ullmann (above n 8, 214) suggests that, using the concepts
38 Medieval Origins
away from canonistic scholasticism, Skinner notes, proved to be ‘the first decisive
move towards articulating the modern legal concept of the State’.¹⁰⁵
The impact of this Roman law revival can be illustrated by considering the way
it shaped English statecraft. It had already been established by the fifteenth cen-
tury that the Holy Roman Empire had ceased to exist as an authoritative govern-
mental structure.¹⁰⁶ In tandem with this development, we see the re-emergence
of the maxim, Rex in regno suo est imperator (the king is emperor within his own
kingdom).¹⁰⁷ The full impact of this adage was not revealed until 1533, when the
Act in Restraint of Appeals stated:
This realm of England is an empire, and so hath been accepted in the world, governed by
one supreme head and king having the dignity and royal estate of the imperial crown of
the same, unto whom a body politic, compact of all sorts and degrees of people divided in
terms and by names of spirituality and temporality, be bounden and owe to bear next to
God a natural and humble obedience.¹⁰⁸
With this ringing assertion of sovereignty, Henry VIII cut off the right of appeal
to any court outside the kingdom.
The claim that ‘England is an empire’ was not intended to signify any impe-
rial ambitions on England’s part. It simply indicated that the king intended to
exercise the monarchic role and function of the emperor laid down within the
framework of Roman law.¹⁰⁹ And within that Romanist framework what is espe-
cially worthy of note is the definition of public law provided by Ulpian in the
Digest: Ius publicum in sacris, in sacerdotibus et in magistratibus consistit (public
law concerns sacred things, priests and magistrates).¹¹⁰ The ‘imperial crown’ as
‘supreme head’ of the ‘body politic’ must control this public law, and of necessity
this includes control of matters of religion.¹¹¹ The assertion of sovereignty—and
the invocation of a hierocratic principle—was now being claimed by secular rulers.
of citizenship, customary law, and the lex regia, Bartolus outlines in juristic form essentially the
same doctrine as Marsiglio (above n 87) had arrived at on philosophical grounds.
¹⁰⁵ Quentin Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge
University Press, 1978), i.11.
¹⁰⁶ The critical episode occurred in the early fourteenth century when Emperor Henry VII
charged King Robert of Naples with high treason for opposing the emperor’s Italian campaign.
After submitting the matter to the pope, Clement V decreed in Pastoralis cura (1314) that a king
could not be cited before a tribunal of any other king. This meant that the exercise of public power
was territorially confined and the universality of emperor’s rule was denied. See Walter Ullmann,
‘The Development of the Medieval Idea of Sovereignty’ (1949) 63 English Historical Review 1–33;
Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western
Legal Tradition (Berkeley: University of California Press, 1993), ch 5.
¹⁰⁷ The maxim, which is analysed by Bartolus and initially was felt to be the creation of Azo, is
now ascribed to the work of late twelfth century canonists: see Riesenberg, above n 45, 82–83.
¹⁰⁸ 24 Henry VIII c12.
¹⁰⁹ See above 22.
¹¹⁰ D.1.1.1. Th is definition was also incorporated into canon law by Gratian, above n 70, 1.11.
¹¹¹ Ullmann notes that Henry had from the start of his reign absorbed these principles of
monarchic government, having on accession ordered a new version of the coronation promises
which added to the traditional promise to maintain the lawful rights and liberties of the Church
Gauchet is right to claim that the emergence of this new type of sovereign ‘was no
“secularization” of power, but a transfusion of sacrality into politics’.¹¹² But this
was an innovation: although divine grace bolstered the king’s status, it did not
create it. The king claimed to be an autonomous ruler.¹¹³
This Roman concept of imperium still had to be tempered by the medieval
idea of the king as feudal overlord. The feudal link between king and barons in a
compact of allegiance emphasized the role of the king as a member of the com-
munity, rather than maintaining a status elevated above it. And under feudal
notions, public law was regarded as the product of counsel and consent rather
than command. So the key to successful statecraft lay in the ability to utilize
these contrasting conceptions effectively. A catastrophic failure to do so was illus-
trated when King John was obliged to submit to the precepts of the Magna Carta
of 1215. Magna Carta was in effect a decree reminding the king of his feudal obli-
gations. But it went much further: by requiring punishment to be exercised only
in accordance with the lex terrae (the law of the land),¹¹⁴ the charter postulated a
concept of law that contrasted markedly with the lex regis. The lex terrae, which
later formed the basis of the common law, and which could be altered only by Act
of Parliament, emerged alongside Roman law and canon law as the third great
concept of European law.¹¹⁵
The history of the English state is the history of the struggle between these
two concepts of public law—between Roman law and common law, theocratic
and feudal, imperium and dominium, and, later, sovereign authority and liberties.
Perhaps not surprisingly, a Thomist accommodation, one that blended elements
of the descending and ascending themes, was reached: the king is dominium
politicum et regale. This may not have been entirely satisfactory, though the cir-
cumstances of English political history became such that it proved difficult to
move beyond it. Before examining this aspect of English constitutional develop-
ment, however, we need to look more closely at the basic elements of the Thomist
accommodation. In doing so, we should note in particular the ways in which, in
seeking some accommodation between the theocratic and the feudal, it became
the phrase ‘not prejudicial to his jurisdiction and dignity royal’: Walter Ullmann, ‘This Realm of
England is an Empire’ (1979) 30 Journal of Ecclesiastical History 175, 183–184.
¹¹² Marcel Gauchet, The Disenchantment of the World: A Political History of Religion Oscar Burge
¹¹³ The beginnings of this process can be traced to the fact that prior to Edward I the king’s reg-
nal years date from unction and coronation. But Edward’s reign is dated from the day of his father’s
funeral (20 November 1272), although he was not anointed and crowned until 19 August 1274.
See Ullmann, above n 79, 48–49.
¹¹⁴ Magna Carta, art 39: ‘No free person shall be taken or imprisoned . . . except by the lawful
judgment of his peers or by the law of the land’.
¹¹⁵ Though little is made of it by commentators, it might be noted that after John complained to
Pope Innocent III that the charter had been forced on him, the pope declared Magna Carta to be
illegal on the ground that it damaged the king’s inalienable rights (and also, as the king’s suzerain,
operated to the prejudice of the pope): see Riesenberg, above n 45, 100–102.
40 Medieval Origins
necessary to draw on the sophisticated, theologically inspired jurisprudence of

the canon law.¹¹⁶
This can be illustrated through Bracton’s doctrine of kingship. Writing in the
mid-thirteenth century, Bracton stated that although the king has no equal or
superior,¹¹⁷ he is not a true king if he rules by arbitrary will.¹¹⁸ Just as Christ
submitted himself to human law, he says, so should the king.¹¹⁹ In this sense,
although the king is not under any man, he is under God and the law.¹²⁰ But
the critical question remains: if the king refuses to do justice, what is the rem-
edy? Since Bracton accepts that no one can presume to question the king’s facta,
there can be no remedy in the king’s courts, and here he follows the Roman law
maxim, Princeps legibus solutus est.¹²¹ But how can the king be both legibus solutus
and sub lege?
Bracton’s solution is based partly on the king’s fear of the work of an avenging
God should divine law be transgressed,¹²² and partly from his coronation oath to
do justice and observe the laws of the realm,¹²³ which placed him under a moral
or prudential duty to observe the laws.¹²⁴ The theological aspects of Bracton’s
¹¹⁶ On the value of this method, see Brian Tierney, ‘The Canonists and the Mediaeval State’
(1953) 15 Review of Politics 378–388. Tierney explains that the general tendency to associate can-
onist writing with the promotion of a rigorous absolutism is partly a consequence of the fact that
medieval canonists ‘seldom wrote a compact treatise on any subject likely to be of interest to the
modern student of political theory’ and their views therefore ‘must be reconstructed from scat-
tered, often widely scattered, glosses’ (at 385). Properly interpreted, he argues ‘that the canonist
writings provide valuable and perhaps indispensable sources for the understanding of that whole
complex of ideas and institutions that is implied when we use the phrase “mediaeval constitution-
alism’’’ (at 381).
¹¹⁷ Bracton, De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) [c1258]
George E Woodbine (ed), Samuel E Thorne (trans) (Cambridge, MA: Belknap Press, 1968), ii.33:
‘Parem autem non habet rex in regno suo’ (The king has no equal in his realm).
¹¹⁸ Ibid: ‘Non est enim rex, ubi dominatur voluntas et non lex’ (For there is no rex where will rules
rather than lex).
¹¹⁹ Ibid: ‘Et quod sub lege esse debeat, cum sit die vicarius, evidenter apparet ad similitudinem Ihesu
Christi, cuius vices gerit in terris’ (And that he ought to be under the law appears clearly in the anal-
ogy of Jesus Christ, whose vicegerent on earth he is).
¹²⁰ Ibid: ‘Ipse autem rex non debet esse sub homine sed sub deo et sub lege, quia lex facit regem’ (The
king must not be under man but under God and under the law, because law makes the king).
¹²¹ Ibid: ‘Nemo quidem de factis suis praesumat disputare, nec multo fortius contra factum suum
vebire’ (No one may presume to question his acts, much less contravene them).
¹²² Gaines Post, ‘Bracton on Kingship’ (1968) 42 Tulane Law Review 519–554; Brian Tierney,
‘Bracton on Government’ (1963) 38 Speculum 295–317.
¹²³ Kern, above n 51, 75–77: ‘The princes of the Middle Ages frequently acknowledged that
they were bound by the law. Since in the Middle Ages no fundamental distinction was drawn
between ethics, custom and law, this limitation possessed, as we should say, not only a moral or
natural validity, but also a validity in positive law. . . . The coronation vows contained nothing to
which the king was not otherwise bound. They simply re-affirmed the essential royal duty in which
all the king’s other duties were comprised: the duty to defend the law. Nevertheless, they performed
an invaluable service, as concrete and solemn evidence that a particular king had submitted to the
bonds of law’. See further Percy Ernst Schramm, A History of the English Coronation Leopold G
Wickham Legg (trans) (Oxford: Clarendon Press, 1937), ch 7.
¹²⁴ Here also Bracton was following Roman law: Cod. 1.14.4, ‘Digna vox maiestate regnantis
legibus alligatum se principem profiteri: adeo de auctoriate iuris nostra pendet auctoritas. Et re vera
analysis have been drawn out by Post, who argues that in making the claim that
the king was the vicegerent of Christ, Bracton wanted to draw the analogy that
‘just as Christ the King of Heaven was legibus humanis solutus, but by his own
volition observed human laws, so the terrestrial king of England was legibus solu-
tus, but should voluntarily (not by any human and legal compulsion) live and rule
according to the laws of the realm’.¹²⁵ Post goes on to note that Bracton extends
this analogy to the position of the Virgin Mary, arguing that although the Virgin,
by a singular privilege, was above the law, she in her humility submitted to the
established laws and customs.¹²⁶ This Christological theme in Bracton, neglected
in many accounts, provides a central motif in his analysis of the status of the
king. Just as Christ and the Virgin were free from the law, so too was the king.
And just as Christ and the Virgin by their own voluntas submitted to the laws, so
should the king, by his own will, adhere to the laws of the realm.
Bracton here connects with an earlier tradition of thought exemplified by
the Norman Anonymous. Writing at the beginning of the twelfth century, the
Anonymous explained that the king was a persona mixta, a twin person in whom
was united both spiritual and secular capacities. In the one, ‘by condition of
nature, he conformed with other men’ and in the other, by ‘deification and by
the power of the sacrament [of consecration], he excelled all others’. By the one,
‘he was, by nature, an individual man’; by the other, ‘he was, by grace, a Christus,
that is, a God-man’.¹²⁷ But this is only an echo. The ideas of the Anonymous
reflected a bygone age of theocratic kingship and, as Kantorowicz comments, ‘the
new territorial states that began to develop in the twelfth century were avowedly
secular despite considerable borrowings from the ecclesiastical and hierarchical
model; secular law, including secularized canon law, rather than the effects of
holy chrism, were henceforth to justify the holiness of the ruler’.¹²⁸ The king as
maius imperio est submittere legibus principatum’ (It is a statement worthy of the majesty of a ruler for
the Prince to profess himself bound to the law: so much does our authority depend on the authority
of the law. And truly, greater than the imperium is the submission of the principate to the laws).
¹²⁵ Gaines Post, ‘Bracton as Jurist and Theologian on Kingship’ in Stephan Kuttner (ed),
Proceedings of the Third International Conference of Medieval Canon Law, Strasbourg, 3–6
September 1968 (Rome: Biblioteca Apostolica Vaticana, 1971), 113–130, 122–123. Cf Ewart
Lewis, ‘King above Law?’ (1964) 39 Speculum 240–269 (arguing that the idea of the king as vicar
of Christ is unBractonian). It might be noted, however, that the theme is also prominent in the
work of John of Salisbury, above n 56, iv.1. And, in addition to the theological reference, John
refers to Cod. 1.14.4).
¹²⁶ Bracton, above n 117, ii.33: ‘Sic etiam beata dei genetrix, virgo Maria, mater domini, quae
singulari privilegio supra legem fuit pro ostendo tamen humilitatis exemplo legalibus subdi non refugit
institutis’ (And in that same way the Blessed Mother of God, the Virgin Mary, Mother of our Lord,
who by a singular privilege was above the law, nevertheless, in order to show an example of humil-
ity, did not refuse to be subjected to established laws). See Post, above n 125, 123–129, who notes
that the phrase singulare privilegium used by Bracton was that utilized in the official decree of the
Immaculate Conception in 1854.
¹²⁷ Norman Anonymous, De consecratione pontificum et regum; cited in Ernst H Kantorowicz,
The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University
Press, 1957), 46.
¹²⁸ Kantorowicz, ibid, 60.
42 Medieval Origins
gemina persona, human by nature and divine by grace, foreshadowed the emer-
gence of a much more influential, theologically inspired metaphor, that of the
king’s two bodies.
The immediate precedent for the doctrine of the king’s two bodies was the
emergence of the idea of the Church as the corpus mysticum Christi (the mystical
body of Christ). In his bull of 1302, Unam Sanctam, Pope Boniface VIII stated
that ‘we are bound to believe in one holy Church . . . which represents one mysti-
cal body, the head of which is Christ, and the head of Christ is God’.¹²⁹ This
organological conception of the Church marks a shift from the ancient distinc-
tion between Christ’s two natures or personalities, human and divine, to that of
Christ’s two bodies, natural and mystical. During the mid-thirteenth century,
this imagery is transferred to the idea of the state as the corpus republicae mys-
ticum.¹³⁰ This organic metaphor was not new,¹³¹ but at this stage it begins to
acquire a more precise juristic meaning. This is most clearly evident in the work
of Sir John Fortescue, the greatest English jurist of the fifteenth century, who
readily adopts the idea that just as ‘the physical body grows out of the embryo,
regulated by one head, so the kingdom issues from the people, and exists as a
body mystical (corpus mysticum), governed by one man as head’.¹³²
The significance of this notion is that, under the influence of corporational
thinking, the corpus republicae mysticum not only acquires identity as a juristic
person (a universitas) but is also conceived as an infinite perpetuity. This con-
ception of the corporate body politic that never dies provides the basis for the
permanence—in saecula saecolorum—of the state.¹³³ Once established, the ques-
tion of the perpetuity of the head of the realm could then be addressed. This, as
Kantorowicz shows, rested on the interplay of three factors: the perpetuity of the
Dynasty, the corporate character of the crown, and the immortality of the royal
Dignity.¹³⁴
The juristic aspects of these factors are concisely outlined by Coke CJ in his
judgment in Calvin’s case in 1608.¹³⁵ That the king’s position was dynastical is
clearly explained by Coke: ‘by Queen Elizabeth’s death the Crown and kingdom
of England descended to His Majesty, and he was fully and absolutely thereby
¹²⁹ See Brian Tierney, The Crisis of Church and State, 1050–1300 (Englewood Cliffs, NJ:
Prentice Hall, 1964), 188. The main biblical source for this imagery is found in Paul: I Corinthians
xii.12: ‘For as the body is one, and hath many members, and all the members of that one body,
being many, are one body: so also is Christ’.
¹³⁰ Vincent of Beauvais, Speculum doctrinale, vii.8; cited in Otto Gierke, Political Theories of the
Middle Age FW Maitland (trans) (Cambridge: Cambridge University Press, 1900), 131.
¹³¹ See John of Salisbury, above n 68.
¹³² Sir John Fortescue, De Laudibus Legum Anglie (In Praise of the Laws of England) [1468–1471]
SB Chrimes (trans) (Cambridge: Cambridge University Press, 1942), ch 13.
¹³³ Kantorowicz, above n 127, ch 6, highlights the importance of this sense of continuity to the
maintenance of the state. He comments: ‘The maxim of the inalienability of the royal desmesne as
well as the idea of an impersonal fisc “which never dies” stand out as landmarks of a new concept of
institutional continuity inspired chiefly, it seems, by the two Laws, Roman and Canon’ (at 284).
¹³⁴ Kantorowicz, above n 127, 316. ¹³⁵ (1608) 7 Co Rep 1.
King, without any essential ceremony or act to be done ex post facto: for corona-
tion is but a Royal ornament and solemnization of the Royal descent, but no
part of the title’.¹³⁶ Continuity demands instantaneous succession, determined
autonomously by the law of succession and without reference to any notion of
election by the people or consecration by the Church.
It is with respect to the second factor, the corporate character of the crown,
that the notion of the king’s two bodies comes into play. Coke explains:
It is true, that the King hath two capacities in him: one a natural body, being descended
of the blood Royal of the realm; and this body is of the creation of Almighty God, and is
subject to death, infirmity, and such like; the other is a politic body or capacity, so called,
because it is framed by the policy of man (and . . . is called a mystical body) and in this
capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity,
infancy, nonage etc.¹³⁷
The crown, Coke recognizes, stands for the body politic; in this sense, it is ‘an
hieroglyphic of the laws’ and signifies that the crown’s function is ‘to do jus-
tice and judgment, to maintain the peace of the land, &c. to separate right from
wrong, and the good from the ill’.¹³⁸ The politic capacity of the king, Coke notes,
both reinforces dynastic succession and ensures the perpetuity and inalienability
of those possessions and acquisitions that exist in jure Coronae.¹³⁹
Th is kind of ‘man-made irreality’, Kantorowicz observes, ‘we are normally
more ready to find in the religious sphere than in the allegedly sober and realis-
tic realms of law, politics, and constitution’.¹⁴⁰ It is, remarked Maitland, ‘a creed
of royalty which shall take no shame if set beside the Athanasian symbol’.¹⁴¹
But can this notion of the body politic—the office of the crown as distinct
from that of the personality of the monarch—stand as a synonym for the state?
The answer rests on our understanding of the corporate character of the king’s
politic body.
This is where matters became confused. By the sixteenth century, the com-
mon law had recognized the parliament of King, Lords, and Commons to be a
corporation.¹⁴² But as we have seen, according to the Act in Restraint of Appeals,
this corporation of the ‘body politic’ was absorbed by the personality of its
monarchical head; the body politic owed a ‘natural and humble obedience’ to
the ‘supreme’ head of the state.¹⁴³ Henry VIII’s action might have shattered the
medieval dualism of church and state and marked the first decisive step to the
emergence of modern state sovereignty. But in the act of doing so, the English
¹³⁶ Ibid, 10b. ¹³⁷ Ibid, 10a. ¹³⁸ Ibid, 11b. ¹³⁹ Ibid, 12a–b.
¹⁴⁰ Kantorowicz, above n 127, 5.
¹⁴¹ Sir Frederick Pollock and FW Maitland, The History of English Law Before the Time of
Edward I (Cambridge: Cambridge University Press, 2nd edn, 1898), i.511.
¹⁴² See FW Maitland, ‘The corporation sole’ in his Selected Essays HD Hazeltine, G Lapsley, and
PH Winfield (eds) (Cambridge: Cambridge University Press, 1936), ch 1, 79–80.
¹⁴³ See above 38.
44 Medieval Origins
absorbed the juristic framework of the papal-hierocratic regime which takes the
head to personify the body.¹⁴⁴
Thereafter, the struggle over the nature of the caput-corpus relationship
became a central theme in the formation of the modern English state. In this
ideological battle, canonist theories provided a rich and diverse source of polit-
ical metaphors. In one celebrated formulation, reflecting the nuances between
Romanist and feudal conceptions of kingship, Fortescue contended that the
English state is a dominium politicum et regale; that is, although the king possesses
an absolute authority to rule, he is able to alter the law only with the consent of
Parliament.¹⁴⁵ Fortescue’s formulation, we might note, is borrowed entirely from
Aquinas, Ptolemy of Lucca, and Giles of Rome.¹⁴⁶ Another illustration of the
canonist influence concerns that claim that in matters affecting the law of the
community—the common law—the people’s representatives should be involved
in its promulgation; this received its most authoritative expression in the Roman
maxim which the conciliarists converted into a principle of public law, Quod
omnes tangit, ab omnibus comprobetur.¹⁴⁷ More generally, the various attempts
to reconcile the Roman maxims Quod principi placuit and Princeps legibus solu-
tus with the idea of the king being required to operate within the bounds of the
lex terrae, all seem to place a great dependence on Thomist notions of natural
law.¹⁴⁸ The Thomist idea that ultimate authority resides neither in the ruler nor
¹⁴⁴ See above 30.

¹⁴⁵ Sir John Fortescue, The Governance of England [c1471] in his On the Laws and Governance of
England Shelley Lockwood (ed) (Cambridge: Cambridge University Press, 1997), 81–123.
¹⁴⁶ See above 35; Fortescue, ibid, 83–84; Felix Gilbert, ‘Sir John Fortecue’s Dominium Regale
et Politicum’ (1943) 2 Mediaevalia et Humanistica 88–97; Blythe, above n 92, 260–266. The
theological roots of Fortescue’s formulation are exposed in JH Burns, Lordship, Kingship, and
Empire: The Idea of Monarchy, 1400–1525 (Oxford: Clarendon Press, 1992), 66: ‘the whole theory
of dominium politicum et regale turns upon establishing the nature and functions of both elements.
Nor does Fortescue leave his readers in any uncertainty as to the dignity and worth he ascribes to
the “politic” element in human society and government. If regal authority in its purest form is to be
compared with that of God, we are also told that dominium politicum is the system that would have
been appropriate for the whole human race if its original state of innocence had been preserved.
Indeed, at one (slightly puzzling) point, Fortescue even suggests that God himself had governed
the people of Israel “politikely and roialy” until they had perversely insisted on having “a kynge, a
verray man that wolde reigne vpon hem only roialy” ’.
¹⁴⁷ See above 36. On the transformation of this Roman principle of private law into a medieval
maxim of public law, see Gaines Post, ‘A Romano-Canonical Maxim, Quod Omnes Tangit, in
Bracton and in Early Parliaments’ in his Studies in Medieval Legal Thought: Public Law and the
State, 1100–1322 (Princeton, NJ: Princeton University Press, 1964), ch 4.
¹⁴⁸ Wilks, above n 67, 213–214, summarizes the Thomist position thus: ‘Just as natural law is
the origin of all law, so the ruler as animated natural law is an initial source of authority in the com-
munity. All things are under his control, and his will has the force of law. But he is not regarded
as having any independent personal role to play in this capacity. He merely seeks out the natural
law and converts it into positive law: he is the executor iustutiae, a judge rather than a legislator.
Consequently, he must always act in accordance with the precepts of natural law: Quod principi
placuit applies only in the sense that the will of the ruler is exercised for the common good. His
is the right to command, but only when he commands rightly’. For contrasting accounts of the
impact of canonist glosses of Princeps legibus solutus, see: Adhémar Esmein, ‘La maxime Princeps
legibus solutus est dans l’ancien droit public français’ in Paul Vinogradoff (ed), Essays in Legal History
in the people provides a significant medieval source of the modern conception of
sovereignty.
The critical point is that the emergence of the modern idea of sovereignty in
the English system has been a political achievement which has not been fully
reflected in legal thought. And the basic reason is that, to all intents and pur-
poses, English law followed the papal-hierocratic principle¹⁴⁹ and held that the
crown—the king’s body politic—is a corporation sole.¹⁵⁰
One reason why the adjustment could not be made, and the crown recognized
as a corporation aggregate which could stand as a legal symbol of the state, is
explained by the third of Kantorowicz’s factors: the royal Dignity. This is a sin-
gular privilege in which the office must be tied to the person. In Calvin’s case, for
example, Coke notes that the idea that allegiance might be owed ‘more by reason
of the King’s Crown (that is, of his politic capacity) than by reason of the person
of the King’ could lead to ‘execrable and detestable consequences’.¹⁵¹ The king’s
two bodies, in short, must never be separated.¹⁵²
So although the establishment of state sovereignty marks the beginning
of an autonomous understanding of the powers of government, at the core of
the emerging secular regime in the English system lay a powerful set of theo-
logical borrowings. The legal status of the monarch is derived from the papal-
hierocratic interpretation of the caput-corpus relationship,¹⁵³ the structure of
(Oxford: Oxford University Press, 1913), 201–214 (arguing that the Glossators perverted the clas-
sical Roman law meaning and turned it into an absolutist principle, and that the English managed
to resist the baneful influence of the canonist); Brian Tierney, ‘ “The Prince is not bound by the
Laws”: Accursius and the Origins of the Modern State’ (1963) 5 Comparative Studies in Society and
History 378–400 (arguing that Accursius, one of the most distinguished Glossators, maintained
that law preceded sovereignty since sovereignty was a product of law, and that the emergence of
constitutionalism is the product of a peculiar fusion of classical, Christian, and feudal concepts).
¹⁴⁹ Wilks, above n 67, 32, explains the papalist position thus: ‘when the whole community is
in its corporate nature represented by one man, that one man becomes himself a corporation, and
there followed a direct transference to the papacy of the Roman law theory of the corporation sole:
papa solus totius Ecclesiae gestat personam. In his solitude the pope epitomises the oneness of the uni-
versitas fidelium, and contains all that is necessary for the functioning of the universal body’.
¹⁵⁰ Sutton’s Hospital Case (1612) 10 Co Rep 29b; Maitland, above n 142.
¹⁵¹ Calvin’s case, above n 135, 11a–b.
¹⁵² Th is is, of course, precisely the line of argument which was pursued by parliamentarians
against Charles I: see, eg, Edward Bagshaw, The Rights of the Crown of England, As It Is Established
by Law (London: Simon Miller, 1660), 29–30: ‘The Person of the King is by Law made up of two
bodies, A naturall body, subject to infancy, infirmity, sickness and death, And a politick body, per-
fect, powerful, and perpetuall: These two bodies are inseparably and individedly united together,
and consolidate each other. . . . Th is union is like that between the Soul and the Body; The Soul it
animates, it quickens, it beautifies the body; so this politick body dignifies, or (rather to speak in a
Law-phrase) it magnifies the naturall body of the King, by greatening it with a threefold greatness
[ie, perfection, power, and majesty]’. John Brydall, Jura Coronae: His Majesties Royal Rights and
Prerogatives Asserted Against Papal Usurpations and of other Anti-Monarchial Attempts and Practices
(London: George Dawes, 1680), 40–41 commenting on the ‘most horrid opinion’ that ‘the king’s
crown (that is . . . his political capacity)’ is separate from his person.
¹⁵³ In addition to drawing on the canonist jurisprudence holding that the king as head repre-
sents the whole, lawyers also drew on the analogy of the pope as ‘unworthy heir of St Peter’ (see
above 20: see Bagot’s case (1469) in which the King’s Bench held that ‘it is necessary that the Realm
46 Medieval Origins
English parliamentary proceedings is replete with theological referents,¹⁵⁴ and

adjustments in the relationship between the king and parliament have had to be
accommodated through a Thomist reading of ‘shared’ sovereignty which can
only be achieved politically but not fully realized juristically. While there are
undoubtedly unique elements to the English narrative, the case does offer a spe-
cific illustration of the general processes through which western European states
struggled to assert their claims to an autonomous power.
VIII. Medieval and Modern Constitutionalism
If a study of the influence of theological ideas in medieval political thought

reveals one thing it is that the frontier between the medieval and modern worlds
is highly blurred. Hill summed up the orthodox view on the divide when he
claimed that ‘the seventeenth is the decisive century of English history, the epoch
in which the Middle Ages ended’.¹⁵⁵ The problem is, as Tierney notes, that ‘in the
realm of constitutional theory, nothing of the sort happened’.¹⁵⁶ The bounda-
ries between medieval and modern remain indistinct. The canon lawyers’ efforts
to conceptualize the authority structure of the Church expose a distinctive pat-
tern to the constitutional thought of the Middle Ages. But the central themes of
this body of thought—relating to authority, consent, representation, rights of
resistance, and the structure of collegiate sovereignty—are ‘common to medieval
law, to fifteenth century conciliarism, and to seventeenth century constitutional
theory’.¹⁵⁷ Reflecting on the complexities of these shifts, Burns, in his overview
should have a King under whose authority laws should be held and upheld, and although the said
Henry [VI] was in power by usurpation, any judicial act done by him and touching the royal
jurisdiction would be valid, and will bind the rightful King when the latter returns to power’. Cited
in Jeff rey Goldworthy, The Sovereignty of Parliament: History and Philosophy (Oxford: Clarendon
Press, 1999), 36.
¹⁵⁴ Kantorowicz (above n 127, 227) provides a particularly apt illustration: ‘Before the close of
Parliament in 1401, the Speaker of the Commons saw fit to compare the body politic of the realm
with the Trinity: the king, the Lords spiritual and temporal, and the Commons jointly formed a
trinity in unity and unity in trinity. On the same occasion the Speaker compared the procedures
of Parliament with the celebration of a mass: the reading of the Epistle and the expounding of the
Bible at the opening of Parliament resembled the initial prayers and ceremonies preceding the holy
action; the king’s promise to protect the Church and observe the laws compared with the sacrifice
of the mass; finally the adjournment of Parliament had its analogy in the Ite, missa est, the dis-
missal, and the Deo gratias, which concluded the holy action’. Elements of the practice remain: see
John Griffith and Michael Ryle, Parliament: Functions, Practices and Procedures Robert Blackburn,
Andrew Kenyon, and Sir Michael Wheeler-Booth (eds) (London: Sweet & Maxwell, 2nd edn,
2003), 6-046, 6-065.
¹⁵⁵ Christopher Hill, God’s Englishman: Oliver Cromwell and the English Revolution (London:
Weidenfeld & Nicolson, 1970), 13.
¹⁵⁶ Tierney, above n 70, 103.
¹⁵⁷ Ibid. In addition to the work of Tierney, see Pennington, above n 106, Skinner, above n
105, and Francis Oakley, ‘On the Road from Constance to 1688: The Political Thought of John
Major and George Buchanan’ (1962) 1 Journal of British Studies 1–31. Th is line of inquiry owes
to The Cambridge History of Political Thought, 1450–1700, recognizes that at the
end of this period ‘we find the stubborn persistence of theological issues that had
preoccupied late medieval scholastics’.¹⁵⁸
Some have located the shift to modernity in the emergence of subjective right:
while medieval ideas rested on organic and corporational thought,¹⁵⁹ it has been
claimed that a radical shift is effected when modern constitutional thought is
reconstructed on the foundation of subjective right.¹⁶⁰ This may be correct,
though we might note that modern constitutional arrangements founded on the
principle of subjective right also rest on theological foundations. The Reformation
had led to a renewal of interest in the Bible as an authoritative source of gov-
ernmental authority and the biblical theme of the covenant provided a fruitful
device for conceptualizing the nature of political obligation.¹⁶¹ The writing of
John Locke—in particular his Second Treatise of Government, ‘the classic text of
radical Calvinist politics’¹⁶²—provided an inspiration for many of the revolution-
aries who helped to draft the American and French Declarations and to devise
the constitutional arrangements of the new republics.¹⁶³ At the core of Locke’s
thought lies ‘a theological doctrine in which individuality is the character each
man has of being an equal and independent servant of God’.¹⁶⁴ Indeed, Locke’s
puritanism, Oakeshott argues, was the defining characteristic of his work: ‘It is
much to the earlier work of Figgis, above n 95, and in an allusion to Figgis’s study (‘from Gerson to
Grotius’), Tierney (above n 70, xi) has suggested, rather provocatively, that a proper study should
extend ‘from Gratian to Madison’.
¹⁵⁸ JH Burns and Mark Goldie (eds), The Cambridge History of Political Thought, 1450–1700
(Cambridge: Cambridge University Press, 1991), 3. See also Gauchet, above n 112, 162: ‘We have
now reached the point, roughly around 1700, where specifically Christian history comes to a halt.
By this I mean history whose activity is indistinguishable from the deployment of a central core of
structural possibilities ushered in by Christ’s founding action’.
¹⁵⁹ See Anton-Hermann Chroust, ‘The Corporate Idea and the Body Politic in the Middle Ages’
(1947) 9 Review of Politics 423–452. Cf Ewart Lewis, ‘Organic Tendencies in Medieval Political
Thought’ (1938) 32 American Political Science Review 849–876.
¹⁶⁰ See Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge:
Cambridge University Press, 1979); Tuck, ‘The “Modern” School of Natural Law’ in Anthony
Pagden (ed), The Languages of Political Theory in Early-Modern Europe (Cambridge: Cambridge
University Press, 1987), 99–122; cf Brian Tierney, ‘Tuck on Rights: Some Medieval Problems’
(1983) 4 History of Political Thought 429–441; Tierney, ‘Origins of Natural Rights Language:
Texts and Contexts, 1150–1250’ (1989) 10 History of Political Thought 615–646. See further, Cary
J Nederman, ‘Conciliarism and Constitutionalism: Jean Gerson and Medieval Political Thought’
(1990) 12 History of European Ideas 189–209; Cary J Nederman, ‘Constitutionalism—Medieval
and Modern: Against Neo-Figgisite Orthodoxy (Again)’ (1996) 17 History of Political Thought
179–194.
¹⁶¹ See, eg, Michael Walzer, The Revolution of the Saints: A Study in the Origins of Radical Politics
(London: Weidenfeld & Nicolson, 1966), ch 5.
¹⁶² Skinner, above n 105, ii.239.
¹⁶³ See, eg, Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas
(New York: Harcourt, Brace & Co, 1922); Bernard Bailyn, The Ideological Origins of the American
Revolution (Cambridge, MA: Belknap Press, 1967), 27: ‘In pamphlet after pamphlet the American
writers cited Locke on natural rights and on the social and governmental contract’.
¹⁶⁴ Michael Oakeshott, Morality and Politics in Modern Europe: the Harvard Lectures Shirley
Robin Letwin (ed) (New Haven, CT: Yale University Press, 1993), 58.
48 Medieval Origins
the responsibility that each man has for his own salvation which, in the end,
determines his individuality’.¹⁶⁵
Although stress is laid on its religious underpinnings in order to highlight
the theme of continuity, there seems little doubt that the modern conception
of natural law was of an altogether different character from earlier understand-
ings.¹⁶⁶ As will be explained in the following chapter, the modern concept of
natural law gave birth to a very different set of questions about the foundations
of governmental order. And it was this period of uncertainty, in which conti-
nuity and discontinuity became overlapping themes, that saw the birth of the
modern idea of public law.
Gauchet argues that after 1700 the ‘age of religion as a structuring force is
over’.¹⁶⁷ This claim should not be misunderstood. He is not suggesting that a
complete separation between religious and political issues is made. Religion may
have ceased to provide the foundation of governmental ordering, but it continued
to exert a powerful influence as culture.¹⁶⁸ Since religion provides us with fi xed
points of orientation and offers guarantees of certainty and permanence, this is
not surprising, even if in a more rationalistic and secular modern age it is often
overlooked. The scale of the challenge for a modern constitutional discourse that
seeks to found government on the people themselves should never be under-
estimated. This modern discourse needs to draw on all the props it can muster,
including a long history that unites religious and philosophical thought. ‘Can we
not admit’, asks Lefort, ‘that, despite all the changes that have occurred, the reli-
gious survives in the guise of new beliefs and new representations, and that it can
return to the surface, in either traditional or novel forms, when conflicts become
so acute as to produce cracks in the edifice of the state?’¹⁶⁹
When Lefort refers to the modern democratic foundation as an ‘empty place’,
it is precisely because there is no longer an external authority that underwrites
political existence. Pure democracy—one in which the figure of the other is
entirely abolished—is an implausible objective. And although modern consti-
tutionalism effects changes, ‘reducing otherness does not mean eliminating the
¹⁶⁵ Ibid. Note also Dunn’s assessment that Locke’s ‘thinking in its entirety was shaped and
dominated by a picture of the earthly setting of human life as a created order, an order designed
and controlled by an omnipotent, omniscient and also, mercifully, benevolent deity: the God of the
Christians’: John Dunn, ‘What is Living and What is Dead in the Political Theory of John Locke?’
in his Interpreting Political Responsibility: Essays 1981–1989 (Cambridge: Polity, 1990), 9–25, 11.
¹⁶⁶ Francis Oakley, ‘Nederman, Gerson, Conciliar Theory and Constitutionalism: Sed Contra’
(1995) 16 History of Political Thought 1–19.
¹⁶⁷ Gauchet, above n 112, 164.
¹⁶⁸ Note, eg, Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922]
George Schwab (trans) (Cambridge, MA: MIT Press, 1988), 36: ‘All significant concepts of the
modern theory of the state are secularized theological concepts’. See also Schmitt, The Concept
of the Political G Schwab (trans) (Chicago: University of Chicago Press, 1996), 42: ‘The juridic
formulas of the omnipotence of the state are, in fact, only superficial secularizations of theological
formulas of the omnipotence of God’.
¹⁶⁹ Claude Lefort, ‘The Permanence of the Theological-Political?’ in his Democracy and Political
Theory David Macey (trans) (Cambridge: Polity Press, 1988), 213–255, 215.
dimension of the other in the name of pure presence’; as Gauchet recognizes, it

leads only to a transference of the other into immanence.¹⁷⁰ Once we lose the
external as a source of authority, we are obliged to face ourselves and find as an
organizing principle either some alternative collective symbolic representation—
people, nation, state—or ‘the other in ourselves’.¹⁷¹ With the emergence of sub-
jective right we enter the era of modern public law, with all the hazards of seeking
to establish an identity that is no longer externally imposed.
¹⁷⁰ Gauchet above n 112, 166.

¹⁷¹ Hence the metaphor that ‘A constitution is Peter sober while the electorate is Peter drunk’: see
Stephen Holmes, ‘Precommitment and the Paradox of Democracy’ in his Passions and Constraint:
On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995), 134–177, 135.
2
The Birth of Public Law
Public law emerges as an autonomous field of knowledge in the period between

the mid-sixteenth and late-seventeenth centuries. This was a critical period of
intense religious conflict in which the character of collective human association
was placed in question. The period is marked by the growing historicization,
rationalization, and secularization of political thought. The resulting develop-
ments led to two shifts that were decisive in forming the modern concept of pub-
lic law. The first was the formation of a political order detached from its religious
origins: it became ‘temporal in the sense of quitting an ostensibly homogeneous
religious and political context to find an aim and an identity of its own, conceived
in secular terms’.¹ The second was a decisive shift in the understanding of polit-
ical authority, from ‘the idea of the ruler “maintaining his state”—whereby this
simply meant upholding his own position—to the idea that there is a separate
legal and constitutional order, that of the State, which the ruler has the duty
to maintain’.² The corporate idea of the state became the ground on which an
autonomous concept of public law was built.
The significance of this achievement cannot be fully grasped without return-
ing to the themes of both continuity and rupture with the medieval world view.
A decisive break with the notion of theocratic ordering was an essential precondi-
tion for the emergence of this modern idea of the state. But the discourse of public
law was also required to borrow from medieval jurisprudence for the purpose of
bolstering its authority. In explaining these changes, I propose to focus on three
key developments in thought—especially amongst French, Dutch, English, and
German jurists—over this period.
The first concerns a methodological shift in juristic inquiry: this produced an
approach to jurisprudence that was historical and comparative in nature. This his-
torical approach challenged the universal metaphysics of medieval scholasticism
¹ Ernst-Wolfgang Böckenförde, ‘The Rise of the State as a Process of Secularisation’ in his State,
Society and Liberty: Studies in Political Theory and Constitutional Law (New York: Berg, 1991),
26–64, 47. On the ideological aspects of secularization, see Hermann Lubbe, Säkularisierung:
Geschichte eines ideenpolitischen Begriff s (Freiburg im Breisgau: Alber, 1965). Lubbe (at 24) defines
secularization as ‘the withdrawal or release of an object, territory, or institution from ecclesiastical
and spiritual observance and control’: cited in Böckenförde, above, 27.
² Quentin Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge
University Press, 1978), vol 1, x.
and sought to restore the idea of law as a system of practical knowledge (juris
prudentiae) geared to the concerns of civil government. For many, the histori-
cal method appeared conducive to the restoration of medieval constitutionalism.
But this method also stimulated Jean Bodin, who recognized that religious strife
could threaten the government’s authority, to advocate the need to bolster the
absolute authority of the ruler. Bodin’s methodological manoeuvre proved to be a
crucial, if paradoxical, breakthrough in conceptualizing the office of government.
Absolutism, the second of these developments, became the harbinger of modern-
ization. The third and final development concerns the way in which, during the
seventeenth century, a modern theory of natural law was forged. Formulated on
the bedrock of subjective right, this modern conception broke with the medieval
worldview and, by transforming the concept of ius, provided the basis for the for-
mation of modern public law as political jurisprudence.
I. The Methodological Turn
To backtrack a little, the Roman law revival of the late-eleventh century—the

great task of assimilating Justinian’s Code—had sparked a new era of scientific
jurisprudence across western Europe. That task had initially been assumed by
a school of jurists from Bologna known as the Glossators. Their methods were
exegetical and anti-historical: treating the Corpus Juris Civilis as a comprehensive
and intrinsically binding code, the Glossators advanced a method of legal science
based on the techniques of close textual analysis of unquestionably authoritative
law. This scholastic method quickly established itself as the predominant tech-
nique of late-medieval jurisprudence.
The main objective of the Glossators had been to make the Corpus Juris avail-
able as the authoritative common law (ius commune) of that sphere of Europe that
had been incorporated into the Roman Empire. In parts of Europe this met with
some success, with Roman law being applied in court as default rules when the
law of the local jurisdiction was silent. But the Glossators’ methods were deter-
mined by the ambitious nature of their task. The vast materials of the Corpus
Juris had to be converted into useable rules and this meant treating the text as a
comprehensive and perfect code whose meaning could be derived only through
logical analysis. Innovation could therefore be achieved only as a function of tex-
tual interpretation.³
Although Roman law was concerned primarily with private law, many
jurists—often borrowing from the work of canon lawyers on the authority struc-
ture of the medieval church—promoted a top-down understanding of secular
³ See Donald Kelley, ‘Civil science in the Renaissance: the problem of interpretation’ in Anthony
Pagden (ed), The Languages of Political Theory in Early-Modern Europe (Cambridge: Cambridge
University Press, 1987), 57–78. Kelley coins the phrase: cuius interpretatio, eius legislatio (at 57).
52 The Birth of Public Law
governmental authority. This had the effect of bolstering the legal authority of
the Holy Roman Empire. When conflicts arose during the fourteenth century
as a result of a struggle by the cities of Lombardy and Tuscany against imperial
claims, these were also fought out amongst the jurists. What emerged was the
great school of post-Glossators, led by Bartolus and his pupil, Baldus.⁴ The main
contribution of this school was methodological. Bartolus ‘abandoned the cardi-
nal assumption of the Glossators to the effect that, when the law appears to be out
of line with the legal facts, the facts must be adjusted to meet a literal interpreta-
tion of the law’; he replaced it with the basic precept that ‘when the law and the
facts collide, it is the law which must be brought into conformity with the facts’.⁵
Accepting that the emperor was dominus mundi and wielded the merum imper-
ium, Bartolus nevertheless identified cities as an independent class of civitates
and argued that the emperor had no power of rule within them: the emperor, he
argued, was master of the whole qua whole, not the ruler of each of its particular
parts. Using this casuistic and dialectical method, the post-Glossators challenged
the literalism of Roman law scholarship, thereby opening up an inquiry into the
source of governmental authority.⁶
The work of the post-Glossators was built upon largely as a consequence of
technological developments in printing which aided the diff usion of Renaissance
values. By the beginning of the sixteenth century it had led to ‘the emergence of a
new and self-confident humanist culture in France, England, and Germany’.⁷
The juristic methods of the northern humanists are of particular significance
to our inquiry. Seeking to restore classical ideals, they applied techniques of
philological and historical criticism to challenge the intellectual authority of the
Corpus Juris. They mounted a decisive attack on scholastic jurisprudence by dem-
onstrating that the codification of Justinian was less than comprehensive, that it
had been put together in a fragmentary way, and that the methods of interpreta-
tion used to reinforce its authority were highly dubious and often based on igno-
rance of the classical sources.⁸ The implications of this challenge to the authority
of Roman law, which also extended to the flexible methods of Bartolus and the
post-Glossators, gradually permeated politico-legal thinking. If the precepts of
public law were no longer to be derived from an explication of Roman law princi-
ples, where were they to be found?
⁴ See CNS Woolf, Bartolus of Sassoferato: His Position in the History of Medieval Political Thought
(Cambridge: Cambridge University Press, 1913); Joseph Canning, The Political Thought of Baldus
de Ubaldis (Cambridge: Cambridge University Press, 1987).
⁵ Skinner, above n 2, vol 1, 9.
⁶ See JA Wahl, ‘Baldus de Ubaldis and the Foundations of the Nation-State’ (1977) 21
Manuscripta 80–96.
⁷ Skinner, above n 2, vol 1, 198.
⁸ See Donald R Kelley, Foundations of Modern Historical Scholarship: Language, Law, and History
in the French Renaissance (New York: Columbia University Press, 1970), ch 2. Note also that dur-
ing the fifteenth century Lorenzo Valla had demonstrated that the Donation of Constantine was a
forgery: see Kelley, ibid, 38.
Amongst the northern humanists, the most influential answer was first offered
by a group of French jurists. By the sixteenth century, the law schools of Angers,
Bourges, and Toulouse had become established as leading centres of European
jurisprudence. The French legists in general ‘constituted in themselves a great
school of writers, the finest of their profession to be found in Europe during the
century’.⁹ These scholars grappled with the question of governmental authority
during a critical moment when political ideas were losing their theological com-
plexion, when the intellectual authority of Roman law was being undermined,
and when, across Europe, the national state was emerging as the primary territo-
rial unit of allegiance.
Addressing the political issues of their day through the prism of law, these
scholars developed new frameworks of governmental ordering which called for
new methods of legal analysis. Their investigations led to a break not only with
Romanist conceptions of authority but also with the traditions of medieval con-
stitutionalism. This methodological turn—an aspect of what has been called
‘juridical nationalism’¹⁰—proved to be a decisive shift that made possible the
emergence of the modern concept of public law.
The answer that the French legists offered was that public law principles derived
not from Justinian’s Code but from historical investigation of the legal and politi-
cal practices of European states. Such scientific laws as could be devised came
from the application of a comparative method to these experiences of governmen-
tal ordering. This historical argument marked a crucial move, one that led to the
lex terrae emerging alongside Roman law and canon law as an alternative source
of juristic authority.¹¹ In his authoritative study, Church shows how the treatises
of the French legists came to lose their theological colouring and how, through
their use of the historical method, the medieval corporational scheme was eroded
as all subjects were brought into immediate subordination under the king.¹²
These developments reached a critical stage during the first decade of the French
wars of religion in the 1560s. Against the background of a crisis that threatened to
weaken the French state, three scholars—François Hotman, François Baudouin,
and Jean Bodin—made important methodological contributions to the study of
public law. The nature of these studies and their political and legal implications
require close scrutiny.
The most militant anti-Romanism is found in the Calvinist writing of Hotman.
In Anti-Tribonian (1567), Hotman argued that, being drawn up by Greeks and
Byzantines in the fifth century, the Corpus Juris was written after the collapse of
the Roman state by writers ‘who were estranged from the Roman spirit by nation,
⁹ William Farr Church, Constitutional Thought in Sixteenth-Century France: A Study in the

Evolution of Ideas (Cambridge, MA: Harvard University Press, 1941), 4.
¹⁰ See Kelley, above n 3, 71.
¹¹ See above ch 1, 39.
¹² Church, above n 9, esp chs 3 and 4.
place, and time’.¹³ The codifiers ‘altered much and what they did not alter they
scattered and rearranged’ and ‘what they did not retain they destroyed’.¹⁴ The
Codes and Digests, he suggested, ‘are useless to the lawyer because they bear no
relation to modern society’ and ‘they are useless to the historian because they
are not the law that was practised at Rome at any time in its history’.¹⁵ Echoing
Bartolus, Hotman had opened Anti-Tribonian with the claim that: ‘The learned
men of every age have observed and voiced approval of the rule that the laws
should be accommodated to the form and condition of the commonwealth, not
the commonwealth to the laws’.¹⁶ But Hotman drew a more radical message:
different laws may be required for states that differ according to nature, history,
culture, or contemporary circumstances. For Hotman, the study of the consti-
tutional law involved a historical investigation into the distinctive practices of
different regimes.
Hotman argued that Roman law was entirely irrelevant to the task of seeking
to understand the constitution of the French state. Through historical investiga-
tion, he showed that the original francsgaulois had devised an ancient constitu-
tion that protected the people against tyranny and preserved their liberties. These
inquiries had an obvious contemporary point: the ancient constitution, Hotman
suggested, reconciled authority and liberty by making French kings subject to
the constraints of the law and by requiring them to respect the will of the people
expressed through the Estates General.¹⁷
Hotman’s historical investigations into customary law formed part of a gen-
eral movement that sought to supplant the authority of Roman law with that of
the lex terrae. This had specific implications for juristic method. While Roman
law was fi xed and written, giving rise to formal scholastic methods of interpreta-
tion, the folkways of customary law (lex terrae), being unwritten, were subject to
the more creative interpretative techniques of judges. And while Roman law was
universal, fi xed, and formal, customary law was particular, fluid, and informal.
In particular, being evolutionary in character, customary law was able to stay
attuned to contemporary requirements. Customary law, in a trope that is reso-
nant of the period, was held to be tam antique et tam nova, always immemorial
and always up to date.
¹³ Julian H Franklin, Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law
and History (New York: Columbia University Press, 1963), 54 (paraphrasing Hotman’s argument
in Anti-Tribonian). Tribonian was the jurist who, at the command of Justinian, had supervised the
production of the Corpus Civilis.
¹⁴ JGA Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical
Thought in the Seventeenth Century (Cambridge: Cambridge University Press, rev edn, 1987), 12;
see also Skinner, above n 2, vol 2, 270.
¹⁵ Pocock, above n 14.
¹⁶ Hotman, Anti-Tribonian; cited in Franklin, above n 13, 46.
¹⁷ François Hotman, Francogallia [1573] Ralph E Giesey and JHM Salmon (eds) (Cambridge:
Cambridge University Press, 1972); see Church, above n 9, 87–88, 157–158; Donald R Kelley,
François Hotman: A Revolutionary’s Ordeal (Princeton, NJ: Princeton University Press, 1973).
Hotman’s work is an expression of a general reordering of the methods of polit-

ical jurisprudence away from the exegesis of a fi xed authority towards a more his-
torically orientated and sociologically informed theory of law and legislation. The
pedagogical aspects of this movement were most fully brought out by Baudouin
in his work of 1561, De institutione historiae universae et ejus cum jurisprudentia
conjunctione prolegomena (Prolegomenon on the Teaching of Universal History and
its Conjunction with Jurisprudence).¹⁸ For our purposes, the most important mes-
sage of Baudouin’s work was his argument that the university law curriculum had
become focused almost entirely on private law, offering an altogether inadequate
training for a jurisconsult. A jurisconsult, called on to offer advice on affairs of
state, required training in the arts of governing. If we are to train students in
‘fostering the commonwealth and for the governance of empires’, Baudouin con-
tended that public not private law must be studied, and this means that ‘history
[should] be called on first of all’.¹⁹ Law is insufficient for training in statecraft:
the study of history teaches how regimes are built and destroyed and from these
historical experiences students acquire an education in the art of prudence.
This line of legal scholarship culminated in the work of Bodin, who argued,
contrary to the work of the French legists of the early sixteenth century, that
there was no irreconcilable conflict between the claim of absolute authority of
the crown and the maintenance of traditional local liberties.²⁰ Instead, Bodin
claimed that those liberties were guaranteed by the authority of the crown itself.
As Franklin has shown, ‘this idea of a monarchy temperée, absolute and limited at
once, was difficult to formulate in the terms of Roman public law, for the “origi-
nal” princeps of the Corpus Juris . . . was the model of a despot whose will could
have no limit in the law’.²¹ By contrast, the arguments that French legists from
Seyssel to Bodin were making led to the conclusion that ‘the monarchy of France
was a peculiar and indigenous creation’ and owed its authority as much to experi-
ence as to an enacted code.²² In developing this line of thought and then radical-
izing its character, Bodin brought about nothing less than a reconstruction of the
foundations of public law.
¹⁸ See Kelley, above n 3, 116–136.

¹⁹ See Franklin, above n 13, 42–46 (quotations from the Prolegomenon taken from n 17).
²⁰ See esp Claude de Seyssel, La Monarchie de France [1519] Jacques Poujol (ed) (Paris:
Librairie d’Argences, 1961); Nannerl O Keohane, ‘Claude de Seyssel and Sixteenth-Century
Constitutionalism in France’ in J Roland Pennock and John W Chapman (eds), Constitutionalism:
Nomos XX (New York: New York University Press, 1979), 47–83.
²¹ Franklin, above n 13, 41–42. On the idea of ‘monarchy temperée’, see Seyssel, above n 20,
esp vol 2, ch 15: ‘Justice is . . . the true pillar of royal authority. For it is by means of justice that the
prince is similarly obeyed everywhere. If he only uses force, he would need to have an army sta-
tioned throughout the realm. And even if violence could have as much power as justice, it is in the
nature of the people to resist force, while willingly obeying justice’ (‘La Justice . . . c’est le vrai . . . pilier
de l’autorité royale. Car par le moyen de la Justice, la Prince est obéi partout indiff éremment; là où, s’ il
n’usait que de force, faudrait avoir armée par tous les quartiers du royaume. Et si ne pourrait la violence
avoir tant de pouvoir que la Justice: pour tant que naturellement l’on résiste à la force et obéit l’on bien
aisément à Justice’) (at 150).
²² Franklin, above n 13, 42.
II. Bodin’s Method
In its early formulation, Bodin’s method was most clearly displayed in his
Methodus ad facilem historiarum cognitionem (Method for the Easy Comprehension
of History) of 1566. Notwithstanding its title—and also his argument that the
objective in historical study must be to eliminate value judgments²³—Bodin was
not interested in the study of history for its own sake. His objective was to pro-
mote historical inquiry for the purpose of revealing the main precepts of the art of
governing. History offered the key to understanding political right. The nature of
political right could be revealed only through a comparative and historical inves-
tigation into the laws, customs, and practices of particular governing regimes.
This juristic objective was made plain in his Dedication to the President of the
Court of Inquests of the Parlement of Paris, which began with an overt attack
on the idea of Roman law as the ratio scripta of universal law. The Code, Bodin
argued, was drafted during a period ‘when all things suffered from the crud-
est barbarism’ and by lawyers who ‘so disturbed the sources of legislation that
almost nothing pure is dragged forth from the filth and mud’.²⁴ Its recent inter-
preters, Bodin continued, ‘assume a false reputation of knowledge and none of
equity’ and they ‘think that the state is served, judgments decided, and lawsuits
settled by the quantities of syllables’.²⁵ Those who ‘ought gently to have cleaned
the stains and spots from the old record, so that the ancient scene would be rec-
ognized, have with a steel pen so heavily glossed all books with worthless and,
indeed, misleading notes that almost no image of antiquity remains’.²⁶ In place
of jurisconsults, Bodin complained—in tandem with Hotman—that the leading
French jurists had become mere grammarians.²⁷
Bodin’s message was plain: the path of progress is to be discovered through
the study of history, wherein ‘the best part of universal law lies hidden’.²⁸ Since
history is for the most part concerned with politics, Bodin argued that the good
historian must be familiar with the art of statecraft. This knowledge is most read-
ily acquired from experience, from participation ‘in public counsels, executive
power, or legal decisions’.²⁹ However, since ‘without books we can hardly attain
the very complex knowledge of governing the state’, a man becomes even more
skilled ‘if he has added to this practice the profound study of letters and public
²³ Jean Bodin, Method for the Easy Comprehension of History [1566] Beatrice Reynolds (trans)
(New York: Columbia University Press, 1945), 43: ‘The best writers are fully equipped . . . if only
they could rid themselves of all emotion in writing history’.
²⁴ Ibid, 4. ²⁵ Ibid, 7–8. ²⁶ Ibid, 8.
²⁷ See Beatrice Reynolds, Proponents of Limited Monarchy in Sixteenth Century France: François
Hotman and Jean Bodin (New York: Columbia University Press, 1931), 108: ‘In the preface of the
Methodus there is the same interest and aim as that expressed in the Anti-Tribonian. The two books
were written almost contemporaneously and probably derive from the same source, the Chancellor
[Michel de l’Hospital]’.
²⁸ Bodin, above n 23, 8. ²⁹ Ibid, 43.
law’.³⁰ The knowledge required for directing the state is derived from the study of
a comparative study of laws and customs of peoples (ius gentium).
In fact, the Methodus is not so much a guide to the study of history as the pro-
spectus for a new type of jurisprudence. Having rejected as absurd the attempt ‘to
establish principles of universal jurisprudence from the Roman decrees’, Bodin
advocates a comparative method in which ‘wise men should bring together
and compare the legal framework of all states . . . and from them compile the
best kind’.³¹ The study of history thus has a specific purpose: Bodin’s histor-
ical inquiry deals with ‘the way in which one should cull flowers from history
to gather thereof the sweetest fruits’.³² This new type of political jurisprudence
requires a new style of legal education. Rather than focusing on instruction in the
finer points of court practice, a broader humanist curriculum aimed at producing
jurisconsults skilled in the art of governing is needed.
A recurrent theme of the Methodus is that a state’s destiny is determined by
the character of its people. What therefore drives Bodin’s comparative method is
the search for factors that shape the character of a people, predominantly those
of climate and geography. Bodin’s actual argument on climate theory is ‘a dis-
concerting mixture of credulity and critical acumen, of thought-provoking ideas
coupled with the stale cant of astrology’.³³ Although expressing doubt about the
power of astrology, Bodin believes that God has arranged all things according to
number. There is a threefold division of peoples (southern, temperate, and north-
ern) who respectively display three cardinal virtues (truth, wisdom, and labour)
and these attributes in turn reflect a threefold scheme of the world: the intellec-
tual world of the mind, the celestial world of the stars, and the elemental world
of birth and death. But his eccentricities—ranging from the influence of black
bile³⁴ to the power of right versus left³⁵—should not eclipse his methodological
achievement. Bodin initiated a comparative method that, especially in the work
of Montesquieu, was to flourish in the eighteenth century, eventually providing
the basis on which a sociological understanding of law evolved.
The principal section of the Methodus examines the main forms of government
and includes surveys of the constitutional history of the major states. This lays out
the core of his research on comparative jurisprudence and provides an exposition
of the jus gentium, the common law of nations. Here, it might be noted, Bodin’s
idea of the monarch is far removed from that of a sovereign who is legibus solutus;
³⁰ Ibid. ³¹ Ibid, 2. ³² Ibid, 1.

³³ John L Brown, The Methodus ad Facilem Historiarum Cognitionem of Jean Bodin: A Critical
Study (Washington, DC: Catholic University of America Press, 1939), 90.
³⁴ Bodin, above n 23, 106–107: ‘Of the whole race of beasts, none except the hare practises
male love . . . The hare has this trait, I believe, because it has a greater supply of black bile than any
other animal. Therefore it is not remarkable that the southerners, who are full of this bile, are said
to be more inclined to passion . . . It is due to black bile, again, that the southerners are affl icted with
leprosy’.
³⁵ Ibid, 117–123.
rather, it is similar to the medieval idea of the king as bound by law, by custom,
and by the will of the estates.
The central chapters of the Methodus provide a detailed first draft of the argu-
ment that Bodin was later to develop in the République. However, because the
République is often credited with being the originating source of a modern con-
cept of sovereignty, Bodin’s later work has been interpreted mainly through the
frame of his successors. One consequence of this is that his writings often have
not been analysed on their own terms, so that the lines of continuity with the
French legists are underplayed and the organizing premises of the République,
which were already outlined in the Methodus 10 years earlier, have been over-
looked. The achievement of the République can be appreciated only by examining
the structure of the treatise as a whole.
For understandable reasons, many commentators have focused on the first
of the six books of the République. Its opening words offer some indication
of the scope of his inquiry: ‘A commonwealth is a lawful government (droit
gouvernement) of many households, and of that which unto them in common
belongs, with a sovereign power’.³⁶ Bodin then analyses each of these com-
ponents, distinguishing between rightful and disordered government and
between public and private, defining sovereign power as the highest power of
command, and emphasizing the common subjection of citizens to the sover-
eign. The aim in the first book is to outline the parameters of public law.
Notwithstanding the originality of Book I, the remaining five books can-
not be overlooked without distorting Bodin’s purpose. The main objectives of
these books are to offer an analysis by way of comparisons drawn from history
of the various forms of government and the jurisdiction of its officers (Books II
and III), of the various factors that cause states to grow, flourish, and decline,
and thence to derive prudential maxims that should enable governors to main-
tain their state (Books IV–VI). As a whole, the République provides a com-
prehensive and systematic account of the ‘fundamental laws’ at work in the
public realm. By use of examples drawn from history, Bodin seeks to expose
the sociological laws of governmental development and explain the ways in
which they can be shaped into the art of governing. Bodin’s République is
arguably the fi rst systematic presentation of droit politique.
Of particular significance is the distinction Bodin draws in Book II between
sovereignty and government. There is a ‘great difference between the state
and the government of the state’ and this, he claims, is ‘a rule in policy (to my
³⁶ Jean Bodin, Les six livres de la république (Paris: Jacques du Puis, 1576), 1: ‘République est un
droit gouvernement de plusiers mesnages, et de ce qui leur est commun, avec puissance souveraine’. I use
Jean Bodin, The Six Bookes of a Commonweale [1606] Richard Knolles (trans) Kenneth Douglas
McRae (ed) (Cambridge, MA: Harvard University Press, 1962). Knolles, however, translates
puissance souveraine as ‘puissant sovereignty’ (at 1). This does not seem accurate and, although
Bodin is not always clear on this matter, it is essential to keep the terms ‘sovereign’ and ‘sovereignty’
conceptually distinct.
knowledge) not before touched on by any man’.³⁷ Thus, the commonwealth of

ancient Rome was democratic in sovereignty, but aristocratic in its form of gov-
ernment. Similarly, the state may be a monarchy and yet the government pop-
ular, ‘if the king do distribute all places of command, magistracy, offices and
preferments indifferently unto all men, without regard of their nobility, wealth
or virtue’.³⁸ This is the distinction that Rousseau was later to make a centrepiece
of his account of droit politique,³⁹ and which has become one of the foundational
elements of public law.⁴⁰
In the later books, Bodin proceeds in orderly progression to distil the precepts
of the art of governing and, from the materials of universal history, to sketch
the rudiments of a sociological theory of the development of public law. He also
elaborates his theory of climate⁴¹ and of astrology and numbers.⁴² Interspersed
among discussions on the art of governing are maxims that have become power-
ful tropes of modern political thought. These include: power corrupts;⁴³ the
necessity of ensuring a separation of the legislative and executive power;⁴⁴ that
relative equality in wealth distribution promotes the stability of the state;⁴⁵
³⁷ Ibid, 199. ³⁸ Ibid.

³⁹ See below ch 4, 108–117; see also the views of Grotius, below, 76 and Pufendorf, below, 80.
⁴⁰ Bodin, above n 36, II.7, 249–250: ‘this distinction . . . seems to me more than necessary for
the good understanding of the state of every commonwealth, if a man will not cast himself head-
long into an infinite labyrinth of errors’.
⁴¹ Ibid, Bk 5, ch 1. Bodin argues that northern nations are inclined to extreme democracy or
weak monarchy because they are by nature sensuous; that owing to their intellectual nature, the
southern nations are attracted to theocratic absolutism; while those of the middle regions (the
Romans and the French) possess a disposition, by virtue of their moderate and prudent character,
to government by law: ‘The people therefore of the middle regions have more force than they of the
south and less policy: and more wit than they of the north, and less force; and they are more fit to
command and govern commonwealths, and more just in their actions’ (at 550).
⁴² Ibid, Bk 4, ch 2. Bodin’s numerology claims that the number 6 has a special power in relation
to women and 7 in relation to men (at 460), and that the perfect number 496 is of critical impor-
tance to empires (at 464–465).
⁴³ Ibid, 414: ‘the power of command in sovereignty has this mischief in it, that often it makes a
good man evil; a humble man proud; a merciful man a tyrant; a wise man a fool; and a valiant man
a coward’. Cf Lord Acton’s adage: ‘Power tends to corrupt and absolute power corrupts absolutely’
(Anthony Jay (ed), Oxford Dictionary of Political Quotations (Oxford: Oxford University Press,
1996), 1).
⁴⁴ Bodin, above n 36, 277: ‘them that give power of command unto a Senate . . . go about the
destruction of the commonwealth, and utter ruin of the state’. Cf Montesquieu, The Spirit of the
Laws [1748] Anne Cohler, Basia Miller, and Harold Stone (trans and eds) (Cambridge: Cambridge
University Press, 1989), 166: ‘The state will perish when legislative power is more corrupt than exec-
utive’. See further William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon
Press, 1776), i.160–161; AV Dicey, Introduction to the Study of the Law of the Constitution (London:
Macmillan, 8th edn, 1915), 39–40.
⁴⁵ Bodin, above n 36, 569: ‘Among all the causes of sedition and changes of commonwealths
there is not greater than the excessive wealth of some few subjects, and the extreme poverty of the
greatest part’. Cf Adam Przeworski, ‘Why do political parties obey election results?’ in José María
Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (Cambridge: Cambridge
University Press, 2003), 114–144, 115: ‘No democracy ever fell in a country with a per capita income
that wars sustain democracies;⁴⁶ that most self-styled democracies are disguised
aristocracies;⁴⁷ and that ‘the less the power of the sovereignty is (the true marks
of majesty thereunto still reserved), the more it is assured’.⁴⁸ The République
concludes with Bodin’s analysis of the three types of mathematical progression:
arithmetic, geometric, and harmonic. Arithmetic progression, denoting equality
and representing order, is consonant with the interests of democracies; geometric
progression, representing justice, is expressive of aristocratic government; and the
harmonic ratio, portraying the ruler-ruled relationship and representing peace,
was attuned to monarchies.⁴⁹
The République, ‘arguably the most original and influential work of polit-
ical philosophy to be written in the sixteenth century’,⁵⁰ represents the highest
achievement of French jurists in their efforts to replace the authority of Roman
law with a modern account of public law founded on civil wisdom and derived
from a comparative and historical inquiry into the governing practices of
European states. Public law is here conceived to be the set of basic rules, princi-
ples, and practices that establish, sustain, and regulate the activity of governing
the state.
This account of public law results from a basic shift in juristic method. The
practices of public law are to be found in the lex terrae, a type of law revealed
not by the scholastic method of exegesis but by historical investigation. Public
law is presented as a form of historico-political discourse. The emergence of this
approach to public law has a number of important implications, of which three
might be highlighted.
higher than that of Argentina in 1975, $6,055. This is a startling fact, given that just between 1951
and 1990 thirty-nine democracies collapsed in poorer countries, whereas thirty-one democracies
spent 762 years in wealthier countries and not one died. Affluent democracies survived wars, riots,
scandals, economic and government crises, hell or high water’.
⁴⁶ Bodin, above n 36, 422: ‘Whereby it is to be perceived, nothing to be more profitable for the
preservation of a popular state, than to have wars’. Cf Charles Tilly, Coercion, Capital and European
States, AD 990–1990 (Oxford: Blackwell, 1990), 26: ‘War drives state formation and transforma-
tion’. Tilly presents what he calls ‘the central paradox of European state formation’ in the following
terms: ‘the pursuit of war and military capacity, after having created national states as a sort of by-
product, led to a civilianization of government and domestic politics’ (ibid, 206).
⁴⁷ Bodin, above n 36, 705: ‘if we shall rip up all the popular states that ever were, we shall find
that . . . they have been governed in show by the people; but in effect by some of the citizens, or by
the wisest among them, who held the place of a prince and monarch’. Cf Jean-Jacques Rousseau,
The Social Contract [1762], Bk 3, chs 4 and 7. See further Bernard Manin, The Principles of
Representative Government (Cambridge: Cambridge University Press, 1997), 236: ‘Representative
government . . . is a perplexing phenomenon . . . Conceived in explicit opposition to democracy,
today it is seen as one of its forms’.
⁴⁸ Bodin, above n 36, 517. Cf Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment,
and Constraint (Cambridge: Cambridge University Press, 2000), an exploration of what Elster calls
‘constraint theory’, which is underpinned by ‘the proposition that sometimes less is more’ (at 1;
emphasis in original).
⁴⁹ Bodin, above n 36, Bk 6, ch 6; cf Bodin, Methodus, above n 23, 287–288.
⁵⁰ Skinner, above n 2, vol I, 208.
The first is that this discourse draws on a broader range of sources of know-
ledge than Romanist techniques; it seeks the meaning of political right beyond
the formalities of official legal texts in innumerable informal understandings that
have conditioned the ways in which authority is properly exercised. Jurist-law
must accommodate the ways of folk-law, making the task of ascertaining mean-
ing more creative and also more contentious.
Secondly, the adoption of this type of historico-political discourse—wrapped
as it is in a discourse of power—results in the past being treated ideologically.
We cannot avoid the fact that bound up in the anti-Romanist discourse of the
French jurists was a strong strain of Protestant historiography that was mak-
ing claims against royal (Catholic) absolutism. Furthermore, at the same time,
lawyers in Britain were beginning to use similar modes of discourse in dis-
putes over the power of the sovereign.⁵¹ In England, this historico-political
discourse reached its zenith in the myth of the ancient constitution: the claim
that there existed an original Anglo-Saxon constitution under which kings
were elected to an office of limited authority, and where the constitution pro-
tected ancient liberties.⁵² During the early-seventeenth century, this doctrine
of the ancient constitution was invoked by common lawyers, especially Coke,
to protect English liberties from being eroded by the prerogative claims of the
Stuart kings.⁵³ The structure of this discourse—of Saxon right versus Norman
statecraft (otherwise ‘the Norman yoke’)—established a dynamic that turned
⁵¹ See, eg, Adam Blackwood, Adversus Georgii Buchanani dialogum, de jure regni apud Scotus,
pro regibus apologia, Pictavis, apud Pagaeum (1581), who uses historical arguments to bolster the
rights of the sovereign and to challenge the abstract arguments of Buchanan. See Church, above
n 9, 243–271; Howell A Lloyd, ‘The Political Thought of Adam Blackwood’ (2000) 43 Historical
Journal 915–935, 924–925. For Buchanan’s arguments, see below n 74.
⁵² See Pocock, above n 14; Corinne C Weston, ‘England: ancient constitution and com-
mon law’ in JH Burns (ed), The Cambridge History of Political Th ought, 1450–1700 (Cambridge:
Cambridge University Press, 1991), 374–411. Th is was part of a more general move in European
political thought of the period. It might therefore be noted that in De antiquitate Reipublicae
Batavicae (1610), Grotius made a similar appeal to an ancient Batavian constitution to justify the
Dutch revolt against the Spanish: see Annabel S Brett, ‘The development of the idea of citizen’s
rights’ in Quentin Skinner and Bo Stråth (eds), States and Citizens: History, Theory, Prospects
(Cambridge: Cambridge University Press, 2003), 97–112, 109. A related argument was pursued
by Spener when in the early eighteenth century he sought to rid the study of German impe-
rial public law of all foreign influences and attempted to restore an edifice of Germanic princi-
ples rooted in German legal history: Jacob Karl Spener, Teutsches Ius Publicum, oder des Heilige
Römisch-teutschen Reichs (Frankfurt am Main: George Marcus Knocke, 7 vols, 1723–1733).
⁵³ See, eg, Pocock, above n 14, 32: ‘In the fi rst decade of the new century . . . English lawyers
were prepared to defi ne common law as custom and to defend custom against written law in
language which recalls certain French ideas of an earlier generation’. For more extended—
and nuanced—discussion, see Hans S Pawlisch, ‘Sir John Davies, the Ancient Constitution
and Civil Law’ (1980) 23 Historical Journal 689–702; Johann P Sommerville, ‘History and
Theory: the Norman Conquest in Early Stuart Political Thought’ (1986) 34 Political Studies
249–261; Alan Cromartie, Sir Matthew Hale, 1609–1676: Law, Religion and Natural Philosophy
(Cambridge: Cambridge University Press, 1995), chs 1, 7; Alan Cromartie, Th e Constitutionalist
Revolution: An Essay on the History of England, 1450–1642 (Cambridge: Cambridge University
Press, 2006), ch 7.
into a regular refrain,⁵⁴ which later provided the master narrative of Whig con-
stitutional history.⁵⁵
The final implication of Bodin’s methodological shift is the most complex and
most important. Bodin began the République not with an account of the sover-
eign but with the commonwealth; this signalled the placing of a different object
at the core of his inquiry. In Foucault’s words, this discourse ‘is no longer the
State [sc. sovereign] talking about itself; it is something else talking about itself,
and the something else that speaks in history and takes itself as the object of its
own historical narrative is a sort of new entity known as the nation’.⁵⁶ Bodin’s
disquisition on the character of peoples illustrates how imperative it is that a ruler
must understand the nature of the people. By opening up the nature of the rela-
tion between the people and their institutions of government, Bodin shifts the
focus of power from that of the highest power of command (Bodin, Book I) to
one in which it is understood to be generated in a field of forces (Bodin, Book VI,
harmonic proportion).⁵⁷ Bodin here specifies the key concept of power on which
modern public law must be built.
III. Absolutism
The debate over appropriate forms of government between the sixteenth and
eighteenth centuries involved a struggle between rival claims of absolutism and
constitutionalism. But this is to impose modern terminology on that debate.⁵⁸
The key issue was whether or not the authority of the monarch is limited by law.
This became the most pressing political question of the day, essentially because of
a growth in the extent and the intensity of the governing power. As Strayer notes,
⁵⁴ See JGA Pocock, ‘Burke and the Ancient Constitution—A Problem in the History of Ideas’
(1960) 3 Historical Journal 125–143; Christopher Hill, ‘The Norman Yoke’ in his Puritanism and
Revolution (London: Secker & Warburg, 1958), 50–122; RB Seaborg, ‘The Norman Conquest
and the Common Law: The Levellers and the Argument from Continuity’ (1981) 24 The Historical
Journal 791–806.
⁵⁵ See JW Burrow, A Liberal Descent: Victorian Historians and the English Past (Cambridge:
Cambridge University Press, 1981); PBM Blaas, Continuity and Anachronism: Parliamentary and
Constitutional Development in Whig Historiography and in the Anti-Whig Reaction between 1890 and
1930 (The Hague: Martinus Nijhoff, 1978), ch 2.
⁵⁶ Michel Foucault, Society must be defended: Lectures at the Collège de France, 1975–76 David
Macey (trans) (London: Penguin, 2003), 142.
⁵⁷ See Michel Villey, ‘La justice harmonique selon Bodin’ in Horst Denzer (ed), Bodin:
Verhandlungen der internationalen Bodin Tagung in München (Munich: CH Beck, 1973), 69–86.
⁵⁸ The term ‘absolutism’ was adopted in political discourse only during the 1790s, in the dec-
ade following the French Revolution, though ‘the system or concept to which the term referred
was of course much older’: JH Burns, ‘The Idea of Absolutism’ in John Miller (ed), Absolutism in
Seventeenth-Century Europe (London: Macmillan, 1990), 21–42, 21. Similarly, the ‘word “con-
stitutional” was rarely given political significance in France until the late seventeenth century;
but questions about le régime et gouvernement de la monarchie and les lois fondamentales dominated
French political discourse long before that’: Nannerl O Keohane, Philosophy and the State in France:
The Renaissance to the Enlightenment (Princeton, NJ: Princeton University Press, 1980), 25.
III. Absolutism 63
‘the political crises of the sixteenth and seventeenth centuries were not caused by
disputes over the legislative power; they were caused by disputes over the posses-
sion and extent of executive power’. Rulers claimed the singular right ‘to make
whatever decisions were necessary to preserve or strengthen the state’ and they
‘resented any attempts to limit or control this power’.⁵⁹
This dispute became so significant because of the growth in governmental
responsibility for social life. As government became more extensive and special-
ized, additional tasks were allocated to officials charged with exercising their
powers to promote the salus populi. But this differentiation of tasks bolstered the
principle of representation, raising the question of what was being represented.
The ruler might claim that governmental power was an intrinsically personal
possession: officers of state could advise, but only the ruler could decide. The
complicating factor was that the more the sovereign extended his responsibilities,
the more the traditional monarchical image of transcendence was undermined.
The claim of absolutism thus presented itself not as a conservative argument, a
strengthening of the authority of ancient arrangements, but as a novel argument
born of the necessity of maintaining order in a changing world. The absolute
sovereign is not to be confused with the figure of the despot or tyrant wielding an
unrestrained power in an arbitrary manner. Absolutism is a rationalist argument
tied to the emerging modern concept of sovereignty. Its contentious character is
heightened because it was promoted in a secularizing world, in which the sover-
eign had ceased to embody the link between heaven and earth. Consequently,
as Gauchet explains, while the sovereign ‘may plead “divine right” . . . his role
has changed, despite the apparent terminological continuity’. The sovereign ‘no
longer makes the visible carnally present but symbolizes its absence’ and ‘no longer
welds this world to the other but testifies to their separation’.⁶⁰ It was because of
God’s withdrawal that the world had altered from being fi xed and unchanging to
something that had to be constituted. This, argues Gauchet, ‘is how the political
body’s ontological independence, and its ability to set its own laws, comes to be
embodied in the development of the sovereign power’.⁶¹ Absolutism was the cru-
cible in which this modern concept of sovereignty was forged. And even though
this concept eventually came to be associated with ‘the nation’ rather than the
figure of the ruler, the idea of the nation as the ultimate repository of sovereignty
‘takes shape in the mirror of monarchical power’.⁶²
In order to explain this transformation, we must return to Bodin. For much
of the sixteenth century, the French legists had been developing sophisticated
constitutional theories which identified the state with law ‘to such a point
that the most penetrating and influential evaluation of political problems was
⁵⁹ Joseph R Strayer, On the Medieval Origins of the Modern State (Princeton, NJ: Princeton
⁶⁰ Marcel Gauchet, The Disenchantment of the World: A Political History of Religion Oscar Burge
⁶¹ Ibid. ⁶² Ibid, 58.
necessarily through legal considerations’.⁶³ The predominant approach had been
constitutionalist,⁶⁴ a mode of interpretation that Bodin had followed in the
Methodus.⁶⁵ Ten years later, however, Bodin jettisoned this position, producing
in the innovative first book of the République a systematic account of sovereignty
that laid the foundation for a theory of absolutism.
In the République, Bodin argued that every viable state must possess a sin-
gle, supreme centre of authority that contained all governmental powers,
this being ‘the most necessary point for the understanding of the nature of a
commonwealth’.⁶⁶ The phenomenon to which he refers—which he called ‘sov-
ereignty’—is defined as ‘the most high, absolute, and perpetual power over the
citizens and subjects in a commonwealth’.⁶⁷ Sovereignty is ‘the greatest power
of command’ and is ‘not limited either in power, charge, or time certain’.⁶⁸ This
sovereign authority, which Bodin explicates by identifying the ‘true marks of
sovereignty’,⁶⁹ vested in the sovereign ruler.
Bodin’s account signalled an abrupt break not only with the general move-
ment in European public law thought but also with his own earlier work. It can
be explained ideologically as Bodin’s response to the upheavals that threatened to
undermine the French state, triggered by the St Bartholomew’s Day Massacre of
1572. During the 1560s the Huguenots, expressing the interests of the Calvinist
reformers, had become such a powerful political force that the government could
not impose a religious uniformity without causing civil war. In this situation, the
only sensible governmental strategy was to maintain a policy of religious tolera-
tion. The difficulty was that, given Catholic demands for conformity, it could be
enforced only by a strong king, which in the 1560s was lacking. After trying vari-
ous compromises, the ruling group determined on an iniquitous solution—the
assassination of the Huguenot leadership.⁷⁰
When this action was publicly approved by Charles IX, the Huguenots pro-
claimed the king a tyrant, resorted to armed action, and their supporters claimed
the right of legitimate resistance to tyrannical authority. Hotman’s treatise,
Francogallia, drafted in the 1560s but published only in 1573, was a principal
inspiration. In this work, Hotman unearthed the ancient French constitution, a
framework of government in which kings had been elected, were bound by law,
and were created by the ultimate authority of the people meeting in the public
council of the realm. Hotman’s contemporary message was clear: ‘an investigation
of “the wisdom of our ancestors in constituting our commonwealth” will serve
⁶³ Church, above n 9, 6.
⁶⁴ See Church, ibid, esp chs 1 and 3; Keohane, above n 58, esp ch 1.
⁶⁵ See, eg, Brown, above n 33, 131: ‘there is no sympathy for the view that the king is “legibus
solutus” according to the evidence . . . of the Methodus. Bodin criticizes Aristotle for claiming that
kings who are bound by law cannot be called kings at all. Still more pernicious, however, he says,
are the doctrines of the Roman emperors’.
⁶⁶ Bodin, above n 36, 84. ⁶⁷ Ibid. ⁶⁸ Ibid, 84, 85. ⁶⁹ Ibid, Bk 1, ch 10.
⁷⁰ See Skinner, above n 2, vol 2, ch 8, esp 241–254.
III. Absolutism 65
to reveal how it [the present commonwealth] ought to be organised’.⁷¹ Following

Hotman’s analysis, the right of resistance was developed by Beza, Mornay, and
other Huguenot writers.⁷² In Du droit des magistrats (1574), Beza highlighted the
essential role of government officers in advising the king and ensuring he kept
within the law, arguing that if the king failed to follow that advice, magistrates
possessed the right to have him deposed. This argument, which was not without
its difficulties,⁷³ resulted in the development of ‘a fully political theory of revo-
lution, founded on a recognisably modern, secularised thesis about the natural
rights and original sovereignty of the people’.⁷⁴
Bodin’s shift towards an absolutist conception of sovereignty can be attrib-
uted to his reaction to the Huguenot doctrines of legitimate resistance.⁷⁵ This
is seen most explicitly in the preface to his first edition of République, which
begins by explaining how he has written this treatise on the commonwealth
because the ‘ship of state, rocked by a violent tempest, is in imminent danger of
foundering’.⁷⁶ Bodin explained the need to place a study of the state at the heart
of politics, ‘la Princesse de toutes sciences’, because certain writers displayed igno-
rance of ‘laws and of public right’ that established and maintained the state.⁷⁷
There were two types of writers who ‘have profaned the sacred mysteries of polit-
ical philosophy’.⁷⁸ First, the followers of Machiavelli, ‘the most perfidious son of
a priest that ever lived’, who taught princes the ‘rules of injustice in order through
tyranny to consolidate their power’.⁷⁹ This, Bodin argued, was a disastrous foun-
dation, leading to the ruin of princes and their state. Secondly, he argued against
those who had taken the opposite view but were ‘no less dangerous’: those who
‘under the pretext of exemption from charges [sc. duties] . . . induce the subjects
⁷¹ Ibid, vol 2, 310 (citing Hotman).

⁷² See JH Franklin (ed), Constitutionalism and Resistance in the Sixteenth Century: Three Treatises
by Hotman, Beza and Mornay (New York: Pegasus, 1969). For analysis, see Robert M Kingdon,
‘Calvinism and resistance theory, 1550–1580’ in Burns (ed), above n 52, 193–218.
⁷³ Skinner, above n 2, vol 2, 320: ‘The solution . . . was an obvious but nonetheless paradoxical
one: they turned to the scholastic and Roman law traditions of radical constitutionalism. They
rejected the characteristically Protestant tendency to suppose that God places all men in a condi-
tion of political subjection as a remedy for their sins. Instead they began to argue that the original
and fundamental condition of the people must be one of natural liberty’.
⁷⁴ Ibid, vol 2, 338 (emphasis in original). See further the work of the Gallicised Scot, George
Buchanan, who follows Beza and Mornay except that he remained silent about the religious pact
which the Huguenots argue is made by the people at the establishment of the commonwealth and
talked only of political rights and duties: George Buchanan, De Jure Regni apud Scotos [1579]; The
Art and Science of Government Among the Scots DH MacNeill (trans) (Glasgow: MacLellan, 1964).
⁷⁵ Th is thesis is most vigorously promoted in Julian H Franklin, Jean Bodin and the Rise of
Absolutist Theory (Cambridge: Cambridge University Press, 1973). Note also the remark of
Pierre Bourdieu, ‘From the King’s House to the Reason of State: A Model of the Genesis of the
Bureaucratic Field’ (2004) 11 Constellations 16–36, 31: ‘A close reading of William Farr Church’s
book [above n 9] . . . suggests that the legists were distinguished by theoretical studies that varied
according to their distance from the court: “absolutist” discourse tended to come from those jurists
closest to the central power who established a clear division between the king and his subjects and
removed all reference to intermediate powers’.
⁷⁶ Bodin, above n 36, A69. ⁷⁷ Ibid. ⁷⁸ Ibid. ⁷⁹ Ibid, A70.
to rebel against their natural princes, opening the door to a licentious anarchy,
which is worse than the harshest tyranny in the world’.⁸⁰ Negotiating his way
between the dangers of tyranny and anarchy, Bodin laid the basis for a modern
understanding of droit public.
Significantly, there was a dramatic shift in tone with respect to Machiavelli.
Although he had been cited on 20 occasions in the Methodus, praised as ‘the
first . . . for about 1,200 years after barbarism had overwhelmed everything’ to
revive the ancient ‘science of governing a state’,⁸¹ Machiavelli was reviled in the
République as the arch-apologist for tyranny.⁸² The reason is essentially circum-
stantial: the 1572 massacres had been widely condemned as Machiavellian, not
least because Catherine de Medici, the Queen Mother and real power behind the
throne, was regarded as having been the architect of the massacres.⁸³ Bodin thus
joined the long list of those who follow Machiavelli while proclaiming the evils of
Machiavellism.⁸⁴
In Book III, Bodin takes great care to explain the duties and responsibilities
of magistrates so as to deny Beza’s claims. After detailed examination of whether
magistrates must obey the prince’s unjust commands, Bodin states: ‘Wherefore
to resolve this point, if the prince’s letters give unto the magistrate neither the
examination nor the hearing or deciding of the fact, or of the right or truth of the
cause, but that only the execution of the prince’s command be unto him commit-
ted: the magistrate in this case may not in any sort take upon him the examina-
tion or hearing of the matter; except the letters of command be notoriously false,
faulty, or absurd, or contrary to the laws of God and nature’.⁸⁵ Bodin similarly
denies any power to subjects legitimately to resist their sovereign.⁸⁶
Bodin’s argument on this latter point has nothing to do with the necessity of
ensuring the subject’s obedience: it is presented as a logical consequence of abso-
lute authority. It is thus tied directly to his general argument about sovereignty,
which is vindicated on logical grounds while argument about historic practices
is sidelined.⁸⁷ Sovereignty is necessarily absolute and indivisible. But Bodin does
⁸⁰ Ibid. ⁸¹ Bodin, above n 23, 153.

⁸² Cf Bodin’s assessment in the Methodus, ibid, 267–268.
⁸³ Cf Innocent Gentillet, Antimachiavel [1576] C Edward Rathé (ed) (Geneva: Droz, 1968).
For discussion of Gentillet’s work, see Martyn P Thompson, ‘The History of Fundamental Law
in Political Thought from the French Wars of Religion to the American Revolution’ (1986) 91
American Historical Review 1103–1128, 1106–1109. See also Stephanus Junius Brutus, the Celt,
Vindiciae, Contra Tyrannos, or, concerning the legitimate power of a prince over the people, and of
the people over a prince [1579] George Garnett (trans) (Cambridge: Cambridge University Press,
1994), 8.
⁸⁴ See esp Friedrich Meinecke, Machiavellism: The Doctrine of Raison d’État and its Place in
Modern History Douglas Scott (trans) (New Haven, CT: Yale University Press, 1957), ch 2.
⁸⁵ Bodin, above n 36, 312.
⁸⁶ Ibid, 222–224. On the rather indirect way in which Bodin addresses these resistance argu-
ments, see JHM Salmon, ‘Bodin and the Monarchomachs’ in Denzer (ed), above n 57, 359–378.
⁸⁷ See Franklin, above n 75, 54: ‘Bodin’s case for royal absolutism is not presented as a system-
atic demonstration in which the supporting evidence is massed together, and opposing interpreta-
tions stated and rebutted. The counter-arguments are touched on here and there, but almost always
III. Absolutism 67
explain how the sovereign’s absolute authority is also limited. The limitations
are of two types: those that concern the ‘fundamental laws’ which establish and
maintain the office of the sovereign, and those ‘natural laws’ which condition
the sovereign’s treatment of his subjects. This is puzzling. For the significance of
Bodin’s idea of absolute authority to be grasped, the nature of these limitations
must be examined.
The concept of fundamental law was widely used in the medieval world to
denote the customary laws of the ancient constitution.⁸⁸ Bodin’s use of the term
is more precise. He identifies only two species of fundamental law or leges imperii:
the Salic law determining the right of succession to the throne, and the law pro-
hibiting alienation of the royal domain. These fundamental laws serve a specific
purpose: they establish and maintain the office of the sovereign. Bodin argues
that ‘touching the laws which concern the state of the realm, and the establishing
thereof; forasmuch as they are annexed and united to the crown, the prince can-
not derogate from them’.⁸⁹ These fundamental rules do not impose limitations
on the sovereign: they are rules that define the nature of the office.
Bodin seeks to establish the office of the sovereign as a permanent and per-
petual institution. The sovereign is not free, as under patrimonial kingships,
to bestow the crown on whomever he desires, and neither is the king created
by the ceremony of coronation or through popular election. In establishing the
order of succession through fi xed rules, the permanent nature of the office is
strengthened.⁹⁰ Its permanent and perpetual character is similarly bolstered by
the rule preventing the sovereign from selling off the royal estate.⁹¹ These crown
rights—rights to public lands, rents, fines, tolls, and such like—exist to meet the
costs of governing, and if that endowment were depleted the future authority of
the office would be diminished. Bodin thus argued that these rules guarantee-
ing the continuity and resources of the crown do not touch on the sovereign’s
absolute authority to rule; the fundamental laws are constitutive of the office
and exist to ensure that that absolute authority is continuously and permanently
established.
in peripheral settings. In Book I, chapter 8, which deals with the meaning of sovereignty, the abso-
lute status of the king of France is simply assumed, and embarrassing evidence explained away’.
⁸⁸ Otto von Gierke, The Development of Political Theory Bernard Freyd (trans) (New York:
Norton, 1939), 299–361; JW Gough, Fundamental Law in English Constitutional History (Oxford:
Clarendon Press, 1955), ch 2.
⁸⁹ Bodin, above n 36, 95.
⁹⁰ Ibid, 112–113: ‘For it is an old proverb with us, that the king doth never die, but that so soon
as he is dead, the next male of his stock is seised of the kingdom, and in possession thereof before he
be crowned, which is not conferred unto him by succession of his father, but by virtue of the law of
the land; lest the succession of the kingdom should be uncertain, then which nothing can be more
dangerous in a commonwealth’.
⁹¹ Ibid, 651: ‘all monarchs and states have held it for a general and undoubted law, that the
public revenues should be holy, sacred, and inalienable, either by contract or prescription. . . . And
this is not peculiar to this realm alone, but common to the kings of England, Spain, Poland, and
Hungary, who are accustomed to swear not to alienate the revenues of the crown’.
But what of natural law? Bodin recognized that natural law—the basic pre-
cepts of just conduct—existed as a feature of social life. He was determined to
explain that natural law could not impose obligations on the sovereign enforce-
able by the people. But he accepted that natural law imposed constraints. The
most important was the right of private property: although the sovereign’s power
is absolute, arbitrary seizure of property, being despotic, is not permissible. For
Bodin, recognition of this right is implicit in the office of the sovereign. Although
the sovereign possesses an absolute power of rule, there are intrinsic constraints.
Recall Bodin’s opening sentence: ‘a commonwealth is a lawful government . . . of
that which . . . in common belongs’.⁹² Government exists to establish public order,
and this requires the drawing of a distinction between public and private.⁹³ The
exercise of ‘lawful government’ requires ‘a sovereign power’, but this absolute
power exists for the purpose of governing public life. Bodin maintains that the
sovereign can take property for public use, but the public need should be evident
and compensation should be paid.⁹⁴
The other natural law source of restraint is the sovereign’s obligation to honour
his own promises and contracts.⁹⁵ There is a duty in natural law to do justice,
though Bodin again emphasizes that this duty binds in conscience only: the sov-
ereign’s failure to comply does not trigger any right on the part of the people to
act against him. There is a significant difference between a promise, which is
personal, and a law, which is an impersonal command.⁹⁶ The king may have an
inherent obligation to do justice, but in law the king can do no wrong. To the
extent that the king submits to action in his courts, this is a matter of grace and
not obligation.⁹⁷
Bodin’s systematic treatment of sovereign authority is radical in its implica-
tions. By stripping of their binding character restraints that had evolved through
the practices of medieval constitutionalism, he presents an account of the pub-
lic realm as an autonomous sphere of action. This is the sphere of sovereignty,
anchored by a central authority conferred with a supreme power of command.
Sovereignty possessed no interest in matters of truth which had sparked religious
civil wars. The function of the ruler is to promote national unity and maintain
peace, and this can be done only by distinguishing between private and public
⁹² Ibid, Bk 1, ch 1 (emphasis supplied); see above 58.

⁹³ Ibid, 110: ‘For that which the common people commonly say, All to be the prince’s, is to be
understood as concerning power and sovereignty, the property and possession of every man’s things
yet reserved to himself. For so says Seneca, Ad reges potestas omnium pertinet, ad singulos proprietas
(unto kings belong the power of all things, and unto particular men the property). And a little after,
Omnia rex imperio possidet singuli dominio (the king in power possesseth all things; and private men
as owners)’.
⁹⁴ Ibid, 109–110. Bodin extends this argument (contentiously) to the issue of taxation; although
consent to new taxation would appear incompatible with his claim to absolutism, he argues that
it is analogous to the taking of property or the ratification of a covenant: ibid, 96–97. See further
Martin Wolfe, ‘Jean Bodin on Taxes: The Sovereignty-Tax Paradox’ (1968) 83 Political Science
Quarterly 268–284.
⁹⁵ Bodin, n 36 above, 106–107. ⁹⁶ Ibid, 91–92. ⁹⁷ Ibid, 90.
matters, elevating the ruler above these competing truth claims, and asserting the
absolute authority of the ruler in the public realm.⁹⁸ The modern state, founded
on the idea of sovereignty, was thus forged in the conditions of religious civil
war.⁹⁹ And in the process the formal limitations on the exercise of the sovereign
power, hitherto expressed in the language of fundamental or natural law, were
stringently redefined by Bodin as conditions for the establishment of an autono-
mous sphere of action.
IV. The Constitution of Sovereignty
The innovative first book of the République was the earliest attempt to specify
constitutive rules for the establishment of a commonwealth or state. These rules
establish the nature of the undertaking: governing the public realm by means
of positive law, with such law-making power vested in an absolute authority.
This is a major achievement: it outlines for the first time the constitution of
sovereignty.
Bodin recognized that these constitutive rules merely establish the basic
institutional forms. For the regime actually to work, these constitutive rules
must be supplemented by regulative rules which control political behaviour. In
the remaining five books of the République, as we have seen, Bodin elaborates
these regulative rules of state-building practice. Although sovereign authority
formally vests in the crown, Bodin recognizes that parliaments and assemblies
are essential aids: ‘the just monarchy hath not any more assured foundation
or stay, than the estates of the people, communities, corporations, and col-
leges’.¹⁰⁰ The importance of Bodin’s concept of sovereignty lies ‘not so much in
Bodin’s own expectations as to how government would operate in practice, for
on this he was generally conventional’.¹⁰¹ Rather, its significance is in its treat-
ment of the legal norm.
We can now go one stage further and suggest that Bodin elaborates both the
formal logic of sovereignty (the relation of legal norms) and conditions for the
generation of power through that framework (the importance of various regula-
tive rules and practices). Each is a necessary element of public law. Bodin was the
⁹⁸ See Roman Schnur, Die französsichen Juristen im konfessionellen Bürgerkrieg des 16.
Jahrhunderts: Ein Beitrag zur Entstehungsgeschichte des modernen Staates (Berlin: Dunkler &
Humblot, 1962), 16–25.
⁹⁹ Ibid, 9: ‘Denn es ist ratsam, sich zu vergegenwärtigen, daß der moderne Staat, so wie er zuerst
in Frankreich enstanden ist, aus dem Bürgerkrieg geboren worden ist. Das ist für die rechtliche
Betrachtung von großer Wichtigkeit: Die Schöpfer des modernen Staatsdenkens mußten sich mit den
Problemen des Bürgerkriegs auseinandersetzen’ (‘Thus, it is advisable to bring to one’s attention,
that the modern state, which first originated in France, was born from civil war. It is of great
importance for legal understanding that the creator of modern public law thought had to deal
with the problem of civil war’).
¹⁰⁰ Bodin, above n 36, 384. ¹⁰¹ Franklin, above n 75, 102–103.
first to grasp this and to try to integrate logic and practice—reason and history—
into a system of universal jurisprudence that combines the formalities of state-
building with the conditions for maintaining the state. Bodin was concerned not
only with establishing the formalities of the right to rule but also with elaborating
the practices that enhance the sovereign’s capacity to rule.
This aspect of Bodin’s work is well drawn out by Holmes, who argues that
‘Bodin treats restrictions on power, unconventionally, as a set of authority-re-
inforcing, will-empowering, and possibility-expanding rules’.¹⁰² Because he was
interested in political practice as well as legal theory, Bodin was able ‘to rede-
scribe traditional limits on royal power as conditions for the successful exercise of
royal power’ and explain how the ruler could be ‘a sovereign in fact as well as in
law’.¹⁰³ Holmes notes especially that Bodin ‘redefines natural law as a set of pru-
dential maxims for avoiding revolution’ and replaces crude Machiavellism with
a strategy that recognizes that ‘authority is strengthened when its jurisdiction is
narrowed’.¹⁰⁴ In the context of the religious wars that ravaged France between
1562 and 1598, Bodin’s teaching conveyed a precise if paradoxical message: in
order to preserve absolute authority, the sovereign was obliged to differentiate
between public and private—between matters of state and matters of religion—
and actively to promote a policy of religious toleration.¹⁰⁵
One of the most contentious aspects of Bodin’s formulation of sovereignty
concerns his claim about indivisibility. Bodin resolved this by drawing a dis-
tinction between sovereignty, the locus of authority, and government, the insti-
tutional forms through which the sovereign rules.¹⁰⁶ Sovereignty should not
be confused with power: restrictions on power can enhance sovereign author-
ity, and absolute authority does not entail omnipotence. His insight was built
upon by jurists less intimately involved in late-sixteenth century French reli-
gious and political conflicts and they were able more clearly to explicate certain
understandings about droit politique that Bodin and his Huguenot rivals held
in common. Foremost amongst these was the German-Dutch jurist, Johannes
Althusius.
In his Politica, published in 1603, Althusius agreed with Bodin on the indi-
visibility of sovereignty, but from this principle he drew different conclusions.
¹⁰² Stephen Holmes, ‘The Constitution of Sovereignty in Jean Bodin’ in his Passions and
Constraints: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995),
100, 110.
¹⁰³ Ibid. ¹⁰⁴ Ibid, 112, 113.
¹⁰⁵ See Böckenförde, above n 1, 36–37: ‘When Henry of Navarre converted to Catholicism in
order to implement his claim to the [French] throne [in 1589]under the loi salique, this was not—as
might superficially have appeared to be the case—a victory for “true religion”, but a victory for pol-
itics. Henry’s action was prompted by reasons of state and sheer political common sense. It was in
order to give the country peace at last, a peace that could be achieved in no other way, and to secure
the authority of the monarchy that the king changed his faith. The first thing he did after bringing
outward peace to the country was to establish a legal existence for the Huguenots under the Edict
of Nantes (1598). . . . The Edict of Nantes was the first attempt to allow two religions in one state’.
¹⁰⁶ See above 58.
Althusius argues that in Book I of the République Bodin in effect distinguishes

between sovereignty of the realm (Chapter 7) and sovereignty of the ruler
(Chapter 8). But which, Althusius asks, is greater? The answer is plain: ‘It cannot
be denied that the greater is that which constitutes the other and is immortal in
its foundation, and that this is the people’.¹⁰⁷ The right of the ruler is lesser for
the obvious reason that it vests in one person only and dies with him. And while
the idea of representative personality can be invoked, it is the king who repre-
sents the people, and not the people the king. Althusius argues that the right of
sovereignty (jus majestatis) that Bodin identifies is coterminous with the right
of the realm (jus regni): ‘This right of the realm, or right of sovereignty, does
not belong to individual members, but to all members joined together and to
the entire associated body of the realm’.¹⁰⁸ Sovereignty must vest in a ‘universal
association’ and that cannot be constituted only by one member; it must consist
of all members together, not severally but jointly. Sovereignty vests in ‘the peo-
ple’ or ‘the nation’.
Agreeing with Bodin that sovereignty is indivisible, perpetual, absolute, and
singular, Althusius argued that therefore sovereignty can be identified only with
the corporate whole. Sovereignty must be distinguished from the government.¹⁰⁹
The various rights of sovereignty can be lawfully delegated ‘so that someone other
than their owner may perform the duties of a supreme magistrate’.¹¹⁰ But to con-
fer these absolute rights of sovereignty on the monarch, even in the representative
figure of the crown, is to confuse the corporate with the personal.¹¹¹
Disputes about the character and location of sovereignty came to dominate
seventeenth century European constitutional discourse. One consequence of
the emergence of absolute monarchy in France, however, was that jurists who
in the sixteenth century had done so much to pioneer understanding of the state
lost their pre-eminent position in political thought,¹¹² a situation that did not
¹⁰⁷ Johannes Althusius, Politica: Politics Methodically Set Forth and Illustrated with Sacred and
Profane Examples [1603] Frederick S Carney (trans and ed) (Indianapolis: Liberty Fund, 1995), 73.
¹⁰⁸ Ibid, 70. It might be noted that although Bodin recognized that ‘the greatness and majesty
of a true sovereign prince is to be known when the estates of all the people [are] assembled together’,
he rejected the argument that ‘the power of the people is greater than the prince’. Nonetheless,
he did make one unusual concession: ‘except the king be captive, furious, or in his infancy, and
so needed to have a protector or lieutenant appointed him by the suff rages of the people’: see
Bodin, above n 36, 95. But see JHM Salmon, The French Religious Wars in English Political Thought
(Oxford: Clarendon Press, 1959), 47: ‘Bodin inserted this clause by way of an exception, and it was
clearly an afterthought since it was contained in the 1586 and later editions of the République but
not in the earlier editions’.
¹⁰⁹ Althusius, above n 107, 71: ‘the administrators of this power can be many, so that individ-
uals can each take on a share of the function of governing, but not the plenitude of power’.
¹¹⁰ Ibid.
¹¹¹ For assessment, see von Gierke, above n 88 (a study of Althusius’ life and thought).
¹¹² See William F Church, ‘The Decline of the French Jurists as Political Theorists, 1660–1789’
(1967) 5 French Historical Studies 1–40, esp 5: ‘In the reign of Louis XIV . . . at the precise moment
when the concept of public law was taking shape, the jurists were abandoning analysis of all things
political and governmental, which for them were grounded in the public law of the realm. Public
change until the Ancien Régime was overthrown in 1789.¹¹³ Growing conflicts
between the supporters of the divine right of kings and those promoting the
claims of popular sovereignty helped to foment the English constitutional crises
of the period.¹¹⁴ During this period, German scholars, highlighting an appar-
ent ambiguity in Bodin’s use of the term majestas,¹¹⁵ developed the argument
that there existed a ‘double sovereignty’, with personal sovereignty (majestas per-
sonalis) being held by the ruler and real sovereignty (majestas realis) vesting in the
people.¹¹⁶ Using this distinction, they sought to synthesize the arguments of the
opposing French schools.¹¹⁷ The processes of change in particular regimes are
complex, but it is through these transmutations that the vital distinction between
‘constituent power’ and ‘constituted power’, underpinning all modern constitu-
tional discourse, emerges.¹¹⁸
Our purpose is not so much to chart these transitions as to highlight a more
basic shift. The point is that absolutism was an innovative ideology, a central fea-
ture of a modernizing movement in European thought, and that it provided the
law continued to develop, but with a minimum of direct influence from the jurists, who instead
concentrated more and more upon the vast, complex body of private law’.
¹¹³ For analysis of the influence of absolutist ideas in a range of European regimes in the ear-
ly-modern period, including France, see Miller (ed), above n 58; Perry Anderson, Lineages of the
Absolutist State (London: Verso, 1985), Pt I.
¹¹⁴ For the Stuart claims, see James VI and I, Political Writings Johann P Somerville (ed)
(Cambridge: Cambridge University Press, 1994); Francis Oakley, ‘Jacobean Political Theology:
The Absolute and Ordinary Powers of the King’ (1968) 29 Journal of the History of Ideas 323–346;
JP Somerville, ‘James I and the Divine Right of Kings: English Politics and Continental Theory’ in
Linda Levy Peck (ed), The Mental World of the Jacobean Court (Cambridge: Cambridge University
Press, 1991), ch 4; Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT:
Yale University Press, 1996). On the theological undergirding, see Francis Oakley, ‘The Absolute
and Ordained Power of God and King in the Sixteenth and Seventeenth Centuries: Philosophy,
Science, Politics, and Law’ (1998) 59 Journal of the History of Ideas 669–690. For the emergence of
notions of popular sovereignty, see ES Morgan, Inventing the People: The Rise of Popular Sovereignty
in England and America (New York: Norton, 1989). For an overview, see Martin Loughlin,
‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional
Practice’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent
Power and Constitutional Form (Oxford: Oxford University Press, 2007), 27–48, esp 28–38.
¹¹⁵ Although Bodin generally uses majestas as a synonym for sovereignty, he also uses it to indi-
cate the regal powers held by the person exercising sovereign power: see, eg, Bodin, above n 36,
157–158: ‘For the word Majesty, is proper unto him which stirreth the helm of the sovereignty of a
commonwealth’.
¹¹⁶ See Otto von Gierke, Natural Law and the Theory of Society, 1500 to 1800 Ernest Barker
(trans) (Cambridge: Cambridge University Press, 1934), vol 1, 54–58; Salmon, above n 108,
50–54. Salmon analyses in particular the works of Christopher Besold, Dissertatio politico-
juridica de majestate in genere (1625), Henning Arnisaeus, De Jure Majestatis (1635), and Johannes
Limnaeus, Notitiae Regni Franciae (1655).
¹¹⁷ The parallels with the medieval claims in relation to dominium regale et politicum (see
above ch 1, 35, 44) are evident. On which, see Francis D Wormuth, The Origins of Modern
Constitutionalism (New York: Harpers, 1949), ch 5.
¹¹⁸ George Lawson, Politica Sacra et Civilis [1660] Conal Condren (ed) (Cambridge: Cambridge
University Press, 1992); Emmanuel-Joseph Sieyès, ‘What is the third estate?’ [1789] in his Political
Writings Michael Sonenscher (ed) (Indianapolis: Hackett, 2003), 92–140. See generally Loughlin
and Walker (eds), above n 114. Cf Beza in Franklin, above n 72, 97–135.
V. Modern Natural Law 73
basis for the notion that the public realm—the realm of sovereignty—constituted
a distinctive and autonomous way of thinking about the world.¹¹⁹ Absolutism
was the crucible in which the modern concept of public law was moulded, and
Bodin was the pivotal figure. As Franklin recognizes, Bodin’s ‘precise defini-
tion of the supreme authority, his determination of its scope, and his analysis
of the functions that it logically entailed, helped turn public law into a scientific
discipline’.¹²⁰ Although Bodin’s scheme is symbolized by a singular figure, the
sovereign, his responsibilities and rights are such that they establish an elaborate
institution. This figure of the sovereign, possessing an indivisible, perpetual, and
absolute power, must lose all of its personal attributes and assume an essentially
representative character. With the emergence of the representative office of the
absolute sovereign, the medieval order is transformed into the abstract entity of
the modern state.
V. Modern Natural Law: Subjective Right,

Security, and Sociability
This final element in the formation of public law concerns the way Bodin’s
thought was rationalized during the seventeenth century by scholars such as
Grotius, Hobbes, and Pufendorf. A key objective of these writers was to explain
how the exercise of absolute authority is compatible with natural law. They drew
on the idea of an original contract borrowed from the Huguenots to show that
the people voluntarily bestowed on the ruler an unlimited authority. This, they
contended, was necessary to enable the state to realize its main purpose of main-
taining the security and well-being of the people while simultaneously recogniz-
ing the subject’s individual rights.
These jurists sought a clean break with the medieval world view. This they
achieved by developing a modern science of natural law.¹²¹ Starting from the
principle of human equality, they destroyed what remained of the hierocratic
principle. Treating right as a personal possession rather than an objective state
of affairs, they transformed the concept of jus as it had appeared in Roman law
and Thomist thought. Reconfiguring the relationship between authority and
right, they promoted individualist and contractualist theories of sovereignty that
acknowledged the absolute authority of the sovereign. Suggesting that the crea-
tor was a rational god who was himself bound by rationality, they presented an
¹¹⁹ JN Figgis, The Divine Right of Kings (Cambridge: Cambridge University Press, 2nd edn,
1922), 237: ‘divine right was . . . the popular form of expression for the theory of sovereignty’.
¹²⁰ Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth Julian H
Franklin (ed and trans) (Cambridge: Cambridge University Press, 1992), xii.
¹²¹ Richard Tuck, ‘The “Modern” School of Natural Law’ in Pagden (ed), above n 3, 99–122;
Knud Haakonssen, Natural Law and Moral Philosophy from Grotius to the Scottish Enlightenment
(Cambridge: Cambridge University Press, 1996).
account of natural law not as the divine will of God but as ‘the dictate of right
reason’ (dictatum rectae rationis). Removing the sense of a personal God from the
workings of the world, they replaced a theocentric with an anthropocentric con-
ception of natural law.
These shifts transformed the modern understanding of political right: legiti-
mate forms of government became the product of science rather than inherit-
ance; political power was revealed as being built on the foundation of subjective
right and generated through the concept of sovereignty; political obligation arose
as a consequence of consent.
The critical role of elaborating this secularized and rationalized concept of
natural law was performed by the Dutch jurist, Hugo Grotius. Grotius worked
on these themes in The Rights of War and Peace (De jure belli ac pacis). The main
elements of his conception of natural law are sketched in the Prolegomena.
Criticizing adherents of Roman law and praising the historical orientation of the
French legists,¹²² Grotius acknowledged that humans are driven by self-interest.
However, while humans have the capacity to assess pleasures and pains, both
immediate and future, and can therefore assess their particular interest, the situ-
ation is complicated by the fact that they are social animals. The meaning of
natural law, he argued, can be derived from these basic human characteristics.
Natural law is that which is conducive to the realization of our interests. Natural
rights attach to persons qua persons and they entitle them to particular privileges.
But because of human sociability, natural law places humans under a duty to pre-
serve social peace. And although this condition of social peace is realized when
we respect one another’s rights, these rights are not sacrosanct: ‘right reason and
the nature of society . . . does not prohibit all manner of violence, but only that
which is repugnant to society’.¹²³ Only that exercise of force which is contrary to
the public interest can be deemed to have infringed another’s right.
Grotius’ radical account of natural law eliminates the mediating presence of
God. Natural law is detected by scientific investigations into human nature,
the laws of nature following as a matter of logical entailment. These laws exist,
Grotius claimed notoriously, ‘even if we were to suppose (what we cannot sup-
pose without the greatest wickedness) that there is no God, or that human affairs
are of no concern to him’.¹²⁴ To grasp the full significance of this innovation,
Grotius’ treatment of rights, law, authority, and sovereignty must be considered.
For Grotius, natural rights are things that individuals intrinsically possess. As
Haakonssen notes, ‘this transformation in the concept of ius is one of the corner-
stones of modern individualism in political theory, for when ius is no longer an
objective condition appointed by law, but something individuals have, the idea
¹²² Hugo Grotius, The Rights of War and Peace [1625] Richard Tuck (ed) (Indianapolis: Liberty
Fund, 2005), vol 3, 1760–1761: ‘The French have tried to incorporate history into the study of law.
The most distinguished have been Bodinus and Hottomanus. . . . Their assertions and arguments
will often prove useful to this inquiry’.
¹²³ Ibid, vol 1, 184. ¹²⁴ Ibid, vol 3, 1748.
of human life as the exercise of competing individual rights is close at hand’.¹²⁵

Because rights inhere in individuals, it becomes the task of law to limit the ways
in which these rights can properly be exercised. Political right thus ‘consists in
refraining from taking what belongs to another person, or in fulfilling some obli-
gation to them’.¹²⁶ This being so, the state has ‘a power to prohibit the unlimited
use of the right towards every other person, for maintaining public peace and
good order’.¹²⁷ Although Tuck rightly claims De Jure Belli as ‘the first reconstruc-
tion of an actual legal system in terms of rights rather than laws’,¹²⁸ it should be
noted that for Grotius the power of the state to curtail rights must be absolute,
‘since otherwise it cannot obtain the end proposed [ie, social peace]’. In particu-
lar, subjects do not maintain a right of resistance, ‘for if that promiscuous right
of resistance should be allowed, there would no longer be a state, but a multitude
without union’.¹²⁹
Grotius presents a contractual theory of absolute sovereignty. Governmental
authority is acquired in various ways but the underpinning logic is always one
of free consent given by the subject. This is because the civil power is ‘the moral
power . . . of governing a state’ and is of a public nature.¹³⁰ The rights of sover-
eignty exist only to realize the ultimate end of social peace. Sovereign authority
is nonetheless unlimited: ‘that is called supreme, whose acts are not subject to
another power’.¹³¹
He then poses a profound question: ‘let us then see what this sovereign may have
for its subject’.¹³² The idea that sovereignty resides in the people is rejected.¹³³ But
he also refutes the argument that it vests in the ruler. Sovereignty exists only when the
people and ruler are drawn together as a single political entity. Grotius explains this
intricate conception of sovereignty using the analogy of sight: ‘the body is the com-
mon subject of sight, the eye the proper’. Similarly, ‘the common subject of supreme
power is the state’ and the proper subject is the ruler, that is, ‘one or more persons
according to the laws and customs of each nation’.¹³⁴ In contrast with the more
confusing terminology of Bodin, who appears to define sovereignty as the ‘absolute
and perpetual power over the citizens’,¹³⁵ Grotius makes it plain that sovereignty is
an expression of the sum total of power institutionalized in a political regime.¹³⁶
This conceptual manoeuvre means that the sovereign no longer represents the
foundation’s exteriority. Sovereignty, in the common sense, is located within the
¹²⁵ Knud Haakonssen, ‘Hugo Grotius and the History of Political Thought’ (1985) 13 Political
Theory 239–265, 240.
¹²⁶ Grotius, above n 122, vol 3, 1748. ¹²⁷ Ibid, vol 1, 138.
¹²⁸ Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge:
Cambridge University Press, 1979), 66.
¹²⁹ Grotius, above n 122, vol 1, 138–139. ¹³⁰ Ibid, vol 1, 257, 259.
¹³¹ Ibid, vol 1, 259. ¹³² Ibid.
¹³³ Ibid, vol 1, 260: ‘here we must first reject their opinion, who will have the supreme power to
be always and without exception, in the people’.
¹³⁴ Ibid, vol 1, 259–260.
¹³⁵ Bodin, above n 36, 84 (emphasis supplied); and see above 64.
¹³⁶ Cf Spinoza’s distinction between potestas and potentia, discussed below in ch 4, section IV.
political body itself (the state) and is given a proper (institutional) locus by the oper-
ation of law and custom. But the concept itself represents the immanent necessities
holding that political body together.
For Grotius, sovereignty therefore is absolute and indivisible. But like Bodin,
he draws a distinction between the constitution of sovereignty and the consti-
tution of government. Although sovereignty is indivisible, its existence is com-
patible with all types of government, whether monarchical, aristocratic, or
democratic.¹³⁷ The question of the constitutional form of government must
always remain conceptually distinct from that of the existence of sovereignty.
Sovereignty presents itself as a juristic device expressing the state’s autonomy as
an independent legal-political order.
Grotius’ work can be understood to form an extension of Bodin’s, especially
in the sense of presenting a historically and empirically grounded analysis of
the fundamental law of the public realm. Thus, although Grotius—unlike
Bodin—starts with the claim of natural rights, his empirical approach leads
to a tendency ‘to see the moral world as an ongoing, open-ended adjustment
of individuals’ pursuit of their natural rights’.¹³⁸ Rather than being fi xed and
God-given, natural rights are presented as the product of a particular stage of
historical development. Further, by incorporating the Huguenot idea of com-
pact, Grotius was able to base the claims of absolutism on a wider and deeper
foundation. He expresses sovereignty not as something located in a particular
source, but as a representation of the power generated from the ways in which we
build a political world. Finally, by deploying the empirical method to discover
the laws of nature, his approach eliminates questions of theology from the exer-
cise. Grotius provides an explanation of governmental ordering in essentially
juristic terms.
Although the De Jure Belli ‘contained in an embryonic form most of the polit-
ical theory of the following years’, as Tuck indicates, ‘the developed offspring had
to live in a world where the principle of sociability, so important to Grotius, was
under fierce attack’.¹³⁹ These implications are clearly expressed in the works of
Thomas Hobbes and Samuel Pufendorf.
Hobbes gave Grotius’ analysis a radical twist mainly by offering an alternative
account of the causes of war and peace. Maintaining that the life of man in a
state of nature is one in which the passions hold sway, Hobbes directly challenges
Grotius’ ideas concerning natural human sociability. For Hobbes, the life of man
in a state of nature is one of perpetual conflict, a veritable bellum omnium contra
omnes. And this state of affairs comes about precisely because humans possess the
natural rights of freedom and equality. Oscillating between the pursuit of power
and a yearning for peace, humans in their natural state live in ‘continual fear
¹³⁷ Grotius, above n 122, vol 1, 260–285. ¹³⁸ Haakonssen, above n 125, 251.
¹³⁹ Tuck, above n 128, 80.
and danger of violent death’.¹⁴⁰ Famously, the life of man in the state of nature is
‘solitary, poor, nasty, brutish and short’.¹⁴¹
In Leviathan, Hobbes argues that the only way to secure peace, security, and
order is for everyone by covenant to relinquish their natural rights and submit
to the authority of a coercive power which, through the threat of punishment,
ensures that promises are kept and rules obeyed. This establishes the state,
founded on the principle of an absolute power of law-making vested in the office
of the sovereign. Law, says Hobbes, is ‘the Reason of this our Artificial Man the
Commonwealth’ and it is ‘his Command that makes Law’.¹⁴² As supreme law-
maker, the sovereign is the sole source of right and wrong, of justice and injustice.
And since it is not ‘possible for any person to be bound to himself, because he
that can bind can release’,¹⁴³ the sovereign itself cannot be bound by law. This
sovereign is a ‘Mortal God’, though one created ‘by Art’ and therefore in no way
dependent on divine authority for the source of its power.¹⁴⁴ Hobbes here breaks
with the ancient world of virtue and vice, transforming the moral claims of right
and wrong into political claims of peace and war.¹⁴⁵
Hobbes’ account was undoubtedly influenced by the political conditions under
which he lived; namely the English civil war and revolution of the 1640s.¹⁴⁶
He was highly attuned to the potentially destructive effects of the claims of
Presbyterians and Independents to be motivated by divine grace. Such matters of
faith and belief he converted into the non-religious concept of ‘opinion’, treating
the claims of ‘conscience’ merely as forms of private, subjective belief.¹⁴⁷ In his
discussion in De Cive of causes that undermine the authority of the state, Hobbes
focuses on ‘doctrines and passions inimical to peace’, especially those that teach
‘that knowledge of good and evil is a matter for individuals’.¹⁴⁸ He regards this
as a pernicious doctrine since right and wrong in the public sphere derive from
the ruler: ‘the civil laws are the rules of good and evil, of the just and unjust, the
honourable and the dishonourable’.¹⁴⁹ When ‘private men claim for themselves
a knowledge of good and evil’, he contends, they aspire to be as kings and in this
situation ‘the commonwealth cannot stand’.¹⁵⁰ The attempt of those ‘to vindicate
themselves theologically by divine grace was to Hobbes a mere expression of their
¹⁴⁰ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 88.
¹⁴¹ Ibid, 89. ¹⁴² Ibid, 187. ¹⁴³ Ibid, 184. ¹⁴⁴ Ibid, 120, 9.
¹⁴⁵ See Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern
Society (Cambridge, MA: MIT Press, 1988), 25: ‘The need to found a State transforms the moral
alternative of good and evil into the political alternative of peace and war’.
¹⁴⁶ See Richard Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge
University Press, 1993), chs 6 and 7.
¹⁴⁷ Hobbes, above n 140, ch 7.
¹⁴⁸ Thomas Hobbes, On the Citizen [1647] Richard Tuck and Michael Silverthorne (eds)
(Cambridge: Cambridge University Press, 1993), 131.
¹⁴⁹ Ibid, 132. ¹⁵⁰ Ibid.
passion’. Koselleck notes that, by contrast, Hobbes ‘elaborated an extra-religious,
supra-partisan position’.¹⁵¹
Of these seventeenth-century scholars, Tuck suggests that although Grotius
‘was probably more original’, it was Hobbes who ‘saw deeper into the issues of rel-
ativism than any philosopher of his time, and perhaps even than any philosopher
since’. It is for that reason that Hobbes remains ‘the foundational philosopher
of our political institutions’.¹⁵² Hobbes presents us with an authoritarian image
of the state, and of law as the command of the sovereign: Auctoritas, non veritas
facit legem.¹⁵³ He also draws out the paradox of the state coming into existence
as a result of a contract, yet establishing itself as an autonomous formation. This
contractual foundation, Hobbes suggests, is derived from a moral imperative, but
thereafter any personal moral claims can be overridden by public (ie, political)
reason. Authoritarian state formation is thus conceived both as a rational neces-
sity and as a set of causal conclusions arising from empirical realities.
The absolute authority of Hobbes’ sovereign is in no sense personal; the sov-
ereign occupied a public office charged with maintaining order and promoting
the common good. Although there could be no such thing as an unjust law, he
does accept that ‘unnecessary laws are not good laws’.¹⁵⁴ The sovereign should
only promulgate rules necessary to maintain the peace, leaving citizens free to
pursue their particular ends in the spheres of life unregulated by the sovereign’s
commands. This injunction acquired particular implications in relation to eccle-
siastical questions, the discussion of which takes up almost half of Leviathan. On
these matters Hobbes argues that only once the church had been placed under
the control of the state, can religious toleration—as private worship—flourish.
The problem is that the Christian church, through error, has acquired an earthly
power.¹⁵⁵ Although with the Reformation, ‘certain churches had renounced this
universal power of the Pope’, Hobbes argues the necessity of the next stage: ‘the
dissolution of the praeterpolitical Church government in England’.¹⁵⁶ Only when
‘we are reduced to the independency of the primitive Christians to follow Paul,
or Cephas, or Apollos, every man as he liketh best’ can there be a clear separation
of private conscience and public obligation.¹⁵⁷ ‘There ought to be’, he declares,
¹⁵¹ Koselleck, above n 145, 27. ¹⁵² Tuck, above n 146, xvii.
¹⁵³ Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of
England [1681] Joseph Cropsey (ed) (Chicago: University of Chicago Press, 1971), 55: ‘It is not
Wisdom, but Authority that makes a Law’.
¹⁵⁴ Hobbes, above n 140, 240.
¹⁵⁵ Ibid, 480: ‘from the time that the Bishop of Rome had gotten to be acknowledged for Bishop
Universal, by pretence of succession to St. Peter, their whole hierarchy, or kingdom of darkness,
may be compared not unfitly to the kingdom of the fairies . . . the Papacy is no other, than the ghost
of the deceased Roman Empire, sitting crowned upon the grave thereof: for so did the Papacy start
up on a sudden out of the ruins of that heathen power’.
¹⁵⁶ Ibid, 475, 479.
¹⁵⁷ Ibid, 479. Hobbes also warns: ‘it is not the Roman clergy only that pretends the kingdom of
God to be of this world, and thereby to have a power therein, distinct from that of the civil state’
(at 482).
‘no power over the consciences of men’.¹⁵⁸ This can happen only when matters of
religious belief are entirely removed from the realm of the civil power.
In the conclusion to his study of modern natural law, Tuck argues that it was
no accident that this new method developed in Holland and England rather than
in France, since it was in the former two countries that ‘in the first half of the cen-
tury the power of the state was threatened or broken by religious dogmatists’. Nor
was it surprising, he continues, that these writers ‘turned to a powerful and—in
our terms—illiberal state to protect intellectual freedoms from mistaken or dog-
matic philosophers arrayed in the churches’.¹⁵⁹ Tuck’s argument also explains
why modern ideas of natural law flourished amongst German scholars in the
latter half of the seventeenth century. The religion-driven Thirty Years War of
1618–1648 had led to the disintegration of the German Empire: the political
unity of the Holy Roman Empire had been undermined, ‘Germany’ became a
territory consisting of some 360 principalities, and the Empire was reduced to
the status of a legal fiction. In these circumstances, the traditional constitutional
ideas of the Empire were challenged on two fronts: by those who, focusing on
empirical realities, recognized the sovereign authority of the territorial states,¹⁶⁰
and by scholars—notably Samuel Pufendorf and Christian Thomasius—who
shaped these modern natural law ideas into a secular, civil philosophy based on
state sovereignty. From this core of ideas the essential elements of modern public
law emerge. The discipline of public law—Staatsrecht—was forged at the critical
moment of the disintegration of the German Empire.
The central figure is Pufendorf who, following Grotius and Hobbes, devel-
oped a new analysis of the German constitution in the light of the destructive
impact of the religious wars. In his work, Die Verfassung des deutschen Reiches
(The Constitution of the German Empire) (1667), Pufendorf was highly critical of
the scholasticism of German constitutional lawyers. Because of their ignorance
of the fundamental relations of politics, these lawyers had failed to recognize
that, after the Peace of Westphalia of 1648, the German Empire had become ‘an
¹⁵⁸ Ibid, 480. ¹⁵⁹ Tuck, above n 121, 118.

¹⁶⁰ Pre-eminent amongst this group were Henning Arnisaeus and Hermann Conring, who
developed a form of ‘political Aristotelianism’: see Horst Drietzel, Protestantischer Aristotelismus
und absoluter Staat: Die ‘Politica’ der Henning Arnisaeus (ca.1575–1636) (Wiesbaden: Franz
Steiner, 1970). Conring was a distinguished historian of German constitutional law, who showed
that Roman law was not introduced into Germany until the fifteenth century, but made his name
mainly by promoting an empirical and historically orientated concept of public law and political
science. Conring argued that a clear separation must be maintained between natural law and posi-
tive law, arguing that: ‘All public law in any state is simply positive law . . . public usefulness is the
essence of public law, and private usefulness that of private law’ (cited in TJ Hochstrasser, Natural
Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000), 48). For
Conring, all general principles of human conduct must be ‘generated from detailed observation
of the history and contemporary politics of the country under consideration’: Hochstrasser, ibid,
49. See further Michael Stolleis (ed), Hermann Conring (1606–1681): Beiträge zu Leben und Werk
(Berlin: Historische Forschungen, 1983).
irregular political body, similar to a monster’.¹⁶¹ The imperial structure could not
be classified within the standard constitutional forms of monarchy, aristocracy,
and democracy, yet had too much power to be merely a confederation of sover-
eign states. The solution was not obvious. Although acceptance of the confed-
eration on the foundation of sovereign territorial states presented a potential way
forward, the extent of Habsburg power rendered that infeasible.
The main focus of Pufendorf’s work eventually became that of generating
arguments to bolster the authority of the territorial states. In his major work,
De jure naturae et gentium, Pufendorf adopts Grotius’ principle of sociability but
refracts it through Hobbes’ argument that individuals were, in their natural state,
driven by their passions; Pufendorf argues that it is in the rational interest of all
individuals to bolster the principle of sociability.¹⁶² He also follows Hobbes in
invoking the device of an originating contract. Arguing that the Hobbesian con-
tract is truncated, however, Pufendorf sought to demonstrate that the absolute
sovereignty of the state can be rendered compatible with a conditional power
vested in the ruler. The foundation of the state, he argues, is marked not by a
single pact, but by two covenants and a decree: the first establishes the political
association of the nation or state (the constitution of the state), the second estab-
lishes the authority of the form of government (the constitution of government),
and the decree proclaims that constitution as a special type of positive law.¹⁶³
One consequence of this arrangement is that although the people form a polit-
ical unity, they never possess supreme authority. By this manoeuvre Pufendorf
avoids the claim that the people possess sovereignty, which is then delegated to
a ruler. The civil authority is able to claim an original absolute supremacy. But
Pufendorf also acknowledges that this sovereignty is conditioned by its intrinsic
nature: ‘He who holds supreme sovereignty is not understood to be able to will
anything but what sane reason can discover to be appropriate for that end’.¹⁶⁴
Pufendorf here follows Grotius in arguing that sovereignty is the product of the
establishment of an institutionalized form of rule. And although he embraces
Hobbes’ voluntarism with respect to the natural self-interest of man, he makes
more explicit than Hobbes the notion that the state was established to secure the
individual’s natural rights. Authority and rights become integral aspects of the
concept of sovereignty.
Since the passions of natural man undermine his capacity for sociality,
Pufendorf’s solution was to establish a sovereign power which can impose rules
¹⁶¹ Samuel Pufendorf [Severinus de Monzambano], Die Verfassung des deutschen Reiches [1667]
Horst Denzer (ed) (Frankfurt am Main: Insel, 1994), 198–199: ‘Germaniam esse irregulare aliquod
corpus et monstro simile’.
¹⁶² On Pufendorf ’s method, see Istvan Hont, ‘The languages of sociability and commerce:
Samuel Pufendorf and the theoretical foundations of the “four-stages” theory’ in Pagden (ed),
above n 3, 253–276.
¹⁶³ Samuel Pufendorf, De jure naturae et gentium [1672] On the Law of Nature and Nations CH
and WA Oldfather (trans) (Oxford: Clarendon Press, 1934), vol II, 2–3.
¹⁶⁴ Ibid, vol II, 1012.
of sociability in the form of positive laws. His analysis offers an alternative to

neoscholastic theories of natural law that treat government as a form of moral
ordering.¹⁶⁵ Pufendorf’s treatment is entirely desacralized; it severs natural law
from metaphysical ideas of justice and goodness and derives the rules of natural
law immanently from the evolving civil relationship.¹⁶⁶ In his universe, natural
law, confined to ‘the orbit of this life’,¹⁶⁷ is the source of the basic precepts of
Staatsrecht. In Hunter’s summation: ‘By replacing Aristotelian anthropology of
man’s rational and social being with an Epicurean conception of man as a pas-
sion-driven self-destructive being, and by using a voluntarist theology to exclude
theo-rational conceptions of justice from the civil domain, the civil philosophers
literally (Hobbes) or in effect (Pufendorf) identified natural law with the com-
mands of the civil sovereign’.¹⁶⁸
Pufendorf’s overriding objective was to instantiate a distinction between the
public and private spheres. The former is the sphere of ethics and politics, the world
of civil government exercised in the pursuit of social peace; the latter the sphere
of transcendent truth, the world of religious conviction driven by the pursuit of
salvation. In the context of warring confessional states and religious communities,
he argues that the only way to maintain the sovereignty of the state is to confine
matters of ultimate truth to the private sphere.¹⁶⁹ In an authoritative study on the
relationship between religion and the civil sphere, Pufendorf sought to demonstrate
that religion, being a personal relation to God, is part of natural freedom not dele-
gated to the sovereign, that ‘civil governments were not erected for religion’s sake’
but only for maintaining ‘common security’, and that therefore it is the sovereign’s
duty to respect freedom of religion.¹⁷⁰
¹⁶⁵ See Thomas Behme, ‘Pufendorf ’s doctrine of sovereignty and its natural law foundations’
in Ian Hunter and David Saunders (eds), Natural Law and Civil Sovereignty (London: Palgrave
Macmillan, 2002), 43–58.
¹⁶⁶ Leonard Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law
(Chicago: University of Chicago Press, 1965), 135: ‘[For Pufendorf] the lawfulness (ius) which is
thus the criterion of both authority and obedience is determined by the function of the political
relationship—the mutual security that is “the end of instituted civil society” ’.
¹⁶⁷ Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law [1673] Michael
Silverthorne (trans) James Tully (ed) (Cambridge: Cambridge University Press, 1991), Preface. See
David Saunders, ‘ “Within the orbit of this life”: Samuel Pufendorf and the Autonomy of Law’
(2002) 23 Cardozo Law Review 2173–2198.
¹⁶⁸ Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern
Germany (Cambridge: Cambridge University Press, 2001), 27.
¹⁶⁹ Cf the provisions of the Peace of Westphalia 1648, which confirmed the central principle of
the Peace of Augsburg 1555 that matters of religion remained within the jurisdiction of the ruler
(cuius regio, eius religio), and guaranteed the right of the ruler to establish the form of religious
belief (‘nullique statui ius, quod ipsi ratione territrii et superioritatis in negotio religionis competit,
impediri oportere’: Instrumenta Pacis Westphalicae, V-30). These provisions gave rise to the pecu-
liarly German practice of Staatskirchenrecht: see Martin Heckel, ‘Zur Entwicklung des deutschen
Staatskirchenrechts von der Reformation bis zur Schwelle der Weimarer Verfassung’ in Heckel,
Gesammelte Schriften: Staat, Kirche, Recht, Geschichte (Tübingen: JCB Mohr, 1989), 366–401.
¹⁷⁰ Samuel Pufendorf, On the Nature and Qualification of Religion in Reference to Civil Society
[1687] Jodocus Crull (trans) Simone Zurbuchen (ed) (Indianapolis: Liberty Fund, 2002), §§2–7.
This theme was taken up by his disciple, Christian Thomasius, who reinforced
the message of both Pufendorf and Hobbes that religious toleration is a correla-
tive principle of absolute sovereign authority.¹⁷¹ Thomasius rehearsed many of
the themes that have been examined in this line of juristic development, from the
perverse influence of Roman law¹⁷² to the idea of the state of nature as a justifica-
tory reason for establishment of sovereign authority.¹⁷³ In advancing Pufendorf’s
argument on the relationship between governmental powers and individual
rights, Thomasius accentuated the distinction between a type of individualism
operating in the moral sphere and the absolutism of the politico-legal sphere. He
pursued secularization even further, arguing that economics and politics—the
sciences of the state—should be taught in their own right in the universities and,
as a means of removing the vestiges of medieval scholasticism, that jurisprudence
should be taught and written in the vernacular.¹⁷⁴
Thomasius’ argument provides the institutional basis for an autonomous con-
ception of the public sphere, based on absolute state sovereignty and operating in
accordance with the arts of governing and immanent precepts of political juris-
prudence. In highlighting the autonomy of the public sphere, however, Thomasius
was obliged to recognize a distinction between natural law precepts and the rules
of the public sphere (the positive laws). In the work of Grotius and Pufendorf,
natural law continued to create the jus gentium, but Thomasius sunders this
¹⁷¹ See Christian Thomasius, Essays on Church, State, and Politics [c1695–1725] Ian Hunter,
Thomas Ahnert, and Frank Grunert (trans and eds) (Indianapolis: Liberty Fund, 2007); Peter
Schröder, ‘Thomas Hobbes, Christian Thomasius and the Seventeenth Century Debate on
the Church and State’ (1997) 23 History of European Ideas 59–79. See also Ian Hunter, The
Secularisation of the Confessional State: The Political Thought of Christian Thomasius (Cambridge:
Cambridge University Press, 2007), ch 4, which explains Thomasius’ argument that there can be
no subjective right to freedom of religion since ‘rights attach only to the political personae of prince
and subject—state and citizen—where they arise as strict juridical categories from laws issued by
a sovereign in order to preserve the domestic peace and external security of the state. Individuals
are not subjects of right in their religious persona, Thomasius argues, as rights pertain only to the
juridical regulation of external conduct’ (at 136).
¹⁷² Christian Thomasius, ‘On the History of Natural Law until Grotius’ in Thomasius, above n
171, 1, esp 29–31 (discussion of the treatment of Roman law by Hotman and Bodin).
¹⁷³ See Christian Thomasius, Institutiones jurisprudentiae divinae [1688] (Aalen: Scientia
Verlag, 1963), lib.III, cap.6, para 12. Frederick M Barnard, ‘Christian Thomasius: Enlightenment
and Bureaucracy’ (1965) 59 American Political Science Review 430–438, 436 offers a précis
of Thomasius’ argument as follows: ‘in his account of man in the state of nature, Thomasius is
almost as much at variance with Hobbes’s image of a bellum omnium contra omnes as with Grotius’s
hypothesis of an instinctive appetitus socialis. There is no ground, Thomasius feels, for postulat-
ing either. Man in the state of nature is neither a social animal, nor a furious lupus. He is a weak,
isolated, lonely creature, in constant fear of disasters, inclined by his evil will to appropriate more
than his due share of such of the scarce things in life as he can come by. . . . Whilst he is aware of an
inner “law” which bids him to respect the “rights” of others, he is at the same time conscious of its
insufficient authority and compelling power. The victim of conflicting impulses, he is a danger to
himself and others. Mutual fear and distrust are the inevitable result, making social intercourse
precarious if not impossible’.
¹⁷⁴ Barnard, ibid, 432. Thomasius was the first university jurist to lecture in German and in
1688 initiated publication of Monatsgespräche, the first monthly journal in the German language.
See further below ch 14, 420.
underlying unity.¹⁷⁵ He recognizes that natural law influences positive law, but
maintains that the two are distinct entities. This was the final acknowledgement
required for the formation of modern public law. Now there is a clear distinction
between political right and positive law, between precepts of prudence and the
authority to command, between the art of politics and the power of rule.
VI. Transition Paradoxes
The argument has been that during the seventeenth century a group of scholars
built on the innovations, both methodological and substantive, of the French
legists of the previous century to produce a novel concept of sovereignty, and
that this concept underpins the modern concept of public law. Sovereignty is no
longer to be equated with some transcendent figure representing the governing
regime’s exteriority. It represents the entire political entity constituted through a
set of institutional arrangements,¹⁷⁶ which entity expresses an autonomous way
of being—a fusion of authority and power that incorporates its own criteria of
right conduct.¹⁷⁷
This juristic revolution was initiated by the French legists who, challenging the
hierocratic and imperial assumptions of Romanism, argued that constitutional
law (droit gouvernement) should be understood to form a set of rules, customs,
and practices through which the several territorially based regimes of rule had
evolved. Their argument presents the first of the paradoxes that unfold in this
narrative. This type of argument embeds law in the historical experience of peo-
ples. It generates less-dogmatic legal methodologies, so that legal discourse can
be made more readily to serve contemporary needs. In public law, the historical
method invariably serves present purposes. In the context of the French religious
wars, for example, it was their respective judgments on the nature of these polit-
ical controversies that caused Bodin and Hotman, equal pioneers of the methodo-
logical shift, to adopt opposing positions on the question of the authority of the
sovereign. Politics is the place where law and history meet.
Of the French legists, it was Bodin who most clearly spoke in a modern voice.
Bodin’s absolutist move brings us to the second paradox: in order to make the
transition to a modern concept of state sovereignty jurists had first to elevate the
office of the ruler. Only by arguing for the sovereign’s absolute power to make law
could the principle of representation complete the work of transforming the hier-
archical notions of medieval rulership into the immanent logic of the governing
¹⁷⁵ On this point, see the incisive analysis of Hochstrasser, above n 160, 133.
¹⁷⁶ This conception of sovereignty was, as explained, formulated primarily by Grotius and
Pufendorf, but during the seventeenth century also developed by Spinoza: see Benedict de Spinoza,
Tractatus Theologico-Politicus [1670] RHM Elwes (trans) (London: Routledge, c1951), 200–213.
See below ch 3, 103–106.
¹⁷⁷ This aspect of sovereignty was expressed most systematically by Hobbes in Leviathan.
regime of the modern state. Destruction of the old regime could be achieved only
by way of elevation.
The logic of modern sovereignty, it must be emphasized, is very different from
the medieval notion of rule. While medieval government was anchored by the
principle of hierarchy, the modern concept of sovereignty, erected on the founda-
tion of natural right, is egalitarian in nature. Medieval government received its
authority from transcendent sources, while the authority of modern government
is located in immanent necessities that maintain the political unity of the state.
Transcendence is opposed by immanence; divine right is supplanted by the gen-
eral will.
This basic shift in orientation was achieved by jurists invoking an argument
whose basis was destroyed in the process of its realization. That is, although the
transition to a modern concept of sovereignty was set in train by historically
orientated jurists seeking to anchor constitutional ordering in the ‘fundamental
laws’ of the ancient constitution, the immanent logic of modern sovereignty could
have no place for the concept of fundamental law. The idea of fundamental law
makes sense only when the regime is determined by an external higher author-
ity; only in this manner are we able to appeal to an authoritative past. When the
regime is no longer externally authorized, we turn to the future as the source of
legitimacy. In this unsettling situation, modern regimes of sovereign states are
obliged to borrow the old forms of religiosity in the guise of a ‘civil religion’.¹⁷⁸
Modern public law operates in an age of ideology, in which the quest for future
salvation—the realization of the ideals implicit in the foundation—offers a justi-
fication for present sacrifices.¹⁷⁹
The fact that the transition to modernity was undertaken by jurists utilizing
natural law ideas generates a further set of paradoxes. Natural law is often con-
ceived to be a metaphysical doctrine operating in accordance with a fundamental
law: namely that all natural occurrences are subject to an underlying universal
reason which provides an ordering to the world. In this metaphysical conception,
humans, through the faculty of reason, are invested by God with knowledge of
the moral laws inscribed in nature. This doctrine of natural law, especially in the
¹⁷⁸ See, eg, Hobbes, above n 140, 233–237. Hobbes argues that ‘the common-people’s
minds . . . are like clean paper, fit to receive whatsoever by public authority shall be imprinted on
them’. The people need to be instructed in ‘the essential rights (which are the natural and funda-
mental laws) of sovereignty’ and in particular are to be taught that ‘they ought not to be in love
with any form of Government they see in their neighbour Nations, more than their own’. For this
purpose, it is necessary ‘that some such times be determined, wherein they may assemble together,
and (after prayers and praises to God, the Sovereign of Sovereigns) hear their duties told them’ and
also that ‘the instruction of the people dependeth wholly on the right teaching of youth in the uni-
versities’. See further Rousseau, ‘The Social Contract’ in The Social Contract and other later politi-
cal writings Victor Gourevitch (trans) (Cambridge: Cambridge University Press, 1997), 39–152,
142–151.
¹⁷⁹ See Gauchet, above n 60, 179: ‘I believe we can consider ideology in its varied historical for-
mations as a discourse which broke with the religious explanation of things through its orientation
to the future, to which it subordinated the intelligibility of human action’.
hands of the scholastics, reinforced the hierarchical theologico-political frame-

work of medieval government. The modern doctrine of natural law, by contrast,
was almost entirely detheologized: far from being motivated by reason, humans
are creatures driven by potentially destructive passions, and are obliged to form a
governing order to realize the fundamental natural law of self-preservation.
The modern doctrine of natural law not only removed the divine from the
workings of the world; it also abandoned the idea of civil rule as an expression
of a natural—and hence also moral—ordering. Invoking modern ideas of the
natural liberty and equality of individuals, jurists such as Grotius, Hobbes, and
Pufendorf transformed natural law from within. Natural law became ‘the intel-
lectual clearing house’ that enabled recent scholarly work in history, politics,
law, and philosophy to be drawn together into a new type of civil philosophy.¹⁸⁰
Natural law became the medium through which hierarchical ordering could be
overthrown and the main instruments of modern political rule fashioned.
Some of the ambiguities in working through these themes were implicit
within the tradition of natural law. Natural law theories tend to pull simultane-
ously in different directions. As Krieger explains, natural law ‘established rules of
behaviour that were universally applicable to all times and places, and it assigned
to human reason and human will, operating in particular times and places, the
function of recognizing and applying them’.¹⁸¹ Although the problem of dealing
with this tension between law and history—of distilling the jus gentium from
comparative historical investigation—has already been touched on, the general
tension between universal and particular is symptomatic of a larger question that
has come to bedevil modern public law. This is the tension between reason and
history, the quest to integrate conceptually the rational and the empirical, the
normative and the factual.
Grotius and Pufendorf finessed these difficulties by claiming that the rational
precepts of natural law directly shape the formation of the jus gentium. Indeed, as
Krieger argues, ‘the merger of natural-law principles with traditional positive law
and institutions was the most prominent feature of [Pufendorf’s] system’.¹⁸² But
Pufendorf’s disciple, Thomasius, saw that the acceptance of voluntarism, a com-
mon feature of modern natural law, obliged him to acknowledge that although
natural law should influence positive law, the two remain distinct. And once the
‘essential unity of the two is broken, and the explanatory power of natural law
theory is restricted’, then, as Hochstrasser notes, ‘law and ethics are, as disci-
plines, sundered’.¹⁸³ Thomasius thus confronted the issue that had been circulat-
ing since Bodin had argued that ‘there is much difference between a right [droit]
¹⁸⁰ Hunter, above n 168, 66.

¹⁸¹ Leonard Krieger, ‘History and Law in the Seventeenth Century: Pufendorf ’ (1960) 21
Journal of the History of Ideas 198–210, 200 (emphasis in original).
¹⁸² Ibid, 204. See Pufendorf, above n 163, vol II 205–219.
¹⁸³ Hochstrasser, above n 160, 133.
and a law [loy]: for a right still without command respecteth nothing but that
which is good and upright; but a law imposeth a commandment’.¹⁸⁴
There is a temptation, to which modern legal scholars have been all too suscep-
tible, to accept this division and limit legal inquiries to the structure of positive
law, ‘the commandment of a sovereign, using of his sovereign power’.¹⁸⁵ If public
law is to retain its explanatory power, this cannot be a solution. The entire struc-
ture of Bodin’s République demonstrates that droit public rests not only on the
commands of the sovereign but on the conditions through which the sovereign
maintains his authority. Transposing this insight into modern terminology, pub-
lic law acquires its identity not from the figure of the sovereign but from the mod-
ern concept of sovereignty, not from the formal law-giver but from the prudential
logic that binds together the political entity of the state.
This, then, is the ultimate significance of the methodological turn in the
late-sixteenth century. Expressing scepticism over the applicability of universal
principles of morality to governmental issues, anti-scholastic scholars sought les-
sons in history.¹⁸⁶ Only from historical study—which today extends to include
empirical or sociological investigation—can the ‘real’ interests of states be dis-
cerned. This line of analysis, stretching from Machiavelli and through the work
of Bodin and Pufendorf, culminates in the doctrine of raison d’ état.¹⁸⁷ Mapping
these changes, Tuck has shown that although writers such as Grotius, Hobbes,
and Locke continued to use the language of natural law and ‘did not on the face
of it use the language of raison d’ état and scepticism’, they incorporated these
insights, using them to transform the character of natural (ie, political) jurispru-
dence.¹⁸⁸ It is in this transformation of natural jurisprudence, which takes place
at ‘the point of union between natural-law system and the history [of states]’,¹⁸⁹
that we can locate the emergence of public law as an autonomous field.
By public law as an autonomous field we mean the arrangements that sus-
tain the modern immanent concept of sovereignty. The idea emerges only in
the late-seventeenth century as jurists moved beyond scholasticism and polit-
ical Aristotelianism to conceptualize the public sphere as an autonomous,
de-personalized, institutionalized entity, sustained by its own politico-legal
¹⁸⁴ Bodin, above n 36, 108. See also Hobbes, above n 140, 91–92.
¹⁸⁵ Bodin, above n 36.
¹⁸⁶ Peter Burke, ‘Tacitism, scepticism and reason of state’ in JH Burns (ed), The Cambridge
History of Political Thought, 1450–1700 (Cambridge: Cambridge University Press, 1991), 479–
498. Tacitism is the term given for studies that used the historical works of Tacitus as a model for
investigating the empirical conditions of regimes of rule.
¹⁸⁷ Burke, ibid; Maurizio Viroli, From Politics to Reason of State: The Acquisition and
Transformation of the Language of Politics, 1250–1600 (Cambridge: Cambridge University Press,
1991). The classic study is Meinecke, above n 84. It also led Thomasius and many of Pufendorf ’s
followers in Germany to embrace a philosophy of eclecticism which was opposed to all forms of
scholasticism and was motivated by a desire to separate philosophy from theology: see Hochstrasser,
above n 160, 23–30, 121–129; Hunter, above n 168, 69–73, 217–219.
¹⁸⁸ Tuck, above n 146, xiv. ¹⁸⁹ Krieger, above n 181, 206.
norms and practices.¹⁹⁰ Arising from the confluence of new ideas in both the
natural and the human sciences, the seventeenth century ‘liberal’ philoso-
phies we have been examining undermined the traditional hierarchical order-
ing of government. But they did not aim at the disintegration of governmental
authority. Although they were centred on the figure of the free and equal
individual, these new philosophies converted subjects into citizens within the
framework of the modern state. Freed from the moral reason of ‘old’ natu-
ral law and established for the civic purposes of promoting peace, security,
and self-development, the new arrangements of the modern state augmented
governmental authority. Th at is, the liberalizing impetus that released human
creative capacities simultaneously stimulated the need for control and regula-
tion by government. Liberal political philosophies did not limit state power;
in restructuring its forms, they actually extended its authority.
Once the theological-political construct of the empire and the papacy had been
replaced by a system of territorially based sovereign states, the modern framework
of international relations and international law was able to emerge. The jus publi-
cum europaeum of the modern era was built on the foundation of mutual respect
for the inviolable domestic authority of sovereign states and mutual recognition
of autonomous states in the international arena. Since sovereign states could not
be subject to any common higher authority and possessed the right to make war
(jus ad bellum), the nature of the inter-state law that evolved in the modern era
entailed the subordination of morality to politics.¹⁹¹ Public international law
thus emerges as a type of political jurisprudence that operates to govern inter-
state relations.
Our main concern, however, is with public law as the framework of authority
of autonomous sovereign states. The claim that reason of state supplies the under-
lying logic of modern public law stands directly opposed to Kantian-inspired
philosophies that deploy rationalist political metaphysics to derive a formal tran-
scendental law from the precepts of critical reason.¹⁹² But otherwise the claim
operates mainly to situate matters of public law in an appropriate intellectual
framework. Meinecke’s classic analysis of Staatsräson—what might be translated
as statism or reason of state and which we will call political jurisprudence—is
instructive. In political jurisprudence, he argues, ‘the well-being of the State and
its population is held to be the ultimate value’ and ‘power, maintenance of power,
extension of power, is the indispensable means which must . . . be procured’.¹⁹³
¹⁹⁰ See Horst Dreitzel, ‘Reason of state and the crisis of political Aristotelianism: an essay on the
development of 17th century political philosophy’ (2002) 28 History of European Ideas 163–187.
¹⁹¹ See Koselleck, above n 145, ch 3, ‘The Exclusion of Natural Law Morality from International
Politics and the Concept of War between States as a Precondition of Moral Progress’; Carl Schmitt,
The Nomos of the Earth in the International Law of the Jus Publicum Europaeum [1950] (New York:
Telos Press, 2003).
¹⁹² In this sense, the argument follows the ‘rival enlightenments’ thesis of Hunter, above n 168.
See Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 142–152.
¹⁹³ Meinecke, above n 84, 2–3.
This must be the starting point for understanding the autonomy of the public
sphere.
Meinecke’s claim that power must be maintained ‘by any means’ might appear
highly controversial. In the modern constitutional context, however, that claim
is conditional. First, such means are limited by the ends which are sought, and
these ends—which Grotius calls the social peace, Meinecke ‘the physical, moral
and spiritual health of the community’,¹⁹⁴ and today is seen as the promotion of
the public welfare—impose major constraints. Secondly, this type of power is
almost entirely institutionalized and its exercise demands on the part of officials
‘the specifically moral accomplishment of altruistic self-sacrifice in the service of a
higher task’.¹⁹⁵ In the political context, ‘power which gushes out blindly will end
by destroying itself; it must follow certain purposive rules and standards, in order
to preserve itself and to grow’.¹⁹⁶ Consequently, although welfare is underpinned
by power, it is also secured ‘through ethics and justice; and in the last resort the
disruption of these can endanger the maintenance of power itself’.¹⁹⁷ Adherence
to ethical standards and upholding constitutional norms are not simply idealistic
considerations; they are also essential requirements of power maintenance.
Political jurisprudence brings the natural (‘the power-impulse’) and the
rational (‘behaviour prompted by moral responsibility’) into alignment.¹⁹⁸ Many
attempts have been made to resolve the resulting tension, though none have been
entirely successful. Th is sphere—a zone that Meinecke believes ‘can never be
brought into the clear light of day, either by theoretical analysis or by practical
application’¹⁹⁹—is the sphere of public law. This claim suggests that our inquiry
must be both ambiguous and complex. Since the tensions seem intrinsic to the
activity, the discourse of public law remains ambiguous and impermanent. And
with the emergence of the democratic impetus, the boundaries of public law
must be determined by whatever is felt necessary to hold humans together as a
self-defined collective unit.
¹⁹⁴ Ibid, 6. ¹⁹⁵ Ibid. ¹⁹⁶ Ibid, 10. ¹⁹⁷ Ibid, 3.

¹⁹⁸ Ibid, 5. ¹⁹⁹ Ibid, 7.
PA RT I I
FOR M AT ION
3
The Architecture of Public Law
Sovereignty expresses the fusion of power and authority and stands as a repre-
sentation of the autonomy of the public sphere. This power-authority dynamic
contains its own criteria of right conduct, anchored in the establishment of a
set of institutional arrangements. And the configuration of these institutional
arrangements, which simultaneously limit and sustain the dynamic, form a dis-
tinctive architecture of public law. These are conclusions that can be drawn from
the discussion of origins in Part I. The question that now presents itself is whether
it is possible to identify some template of right ordering in public law. Given the
variety of human purposes involved in explaining and justifying the establish-
ment of any specific institutional framework of collective association, the asser-
tion of any precise notion of right ordering might seem implausible. This has not
stopped jurists seeking answers. In this chapter, we examine the extent to which
an early-modern metaphor—that of envisioning collective association as a spatial
arrangement with public law as its architectonic form—offers a solution.
I. Right Ordering
The search for right ordering may be one of the most important issues in any
study of the foundations of public law, but it is also one of the most contest-
able. Meinecke’s analysis, presented in the conclusion to Chapter 2, suggests
that it would be naïve to believe in any fi xed template. But even if one accepts
his arguments, it might still be possible to claim that certain arrangements so
badly misidentify purposes as to be self-defeating. Might it therefore be possible
to identify basic conditions of right ordering from an examination of failure to
sustain order?
This is the sort of claim made by political thinkers concerning the nature of
tyrannous or despotic regimes. Hegel suggested that the history of despotisms
is ‘a tale of the vicissitudes of revolt, monarchical tyranny, civil war, the ruin of
princes of the blood and whole dynasties, and, consequently, the general devasta-
tion and overthrow of the state’. And the reason is that despots fail to recognize
the organic relationship between the various component parts of the state. Only
when each part properly fulfils its own functions and respects the limits of their
92 The Architecture of Public Law
roles can the state flourish: ‘what each [component part] fundamentally aims at
and achieves in maintaining itself is the maintenance of the others’.¹ Although
right ordering is contestable, it does not follow that the institutional framework
of the state can be randomly assembled.
I propose two starting assumptions: first, that notwithstanding the existence of
variation, these political practices tend to be arranged in a limited number of rep-
ertoires and, secondly, that certain arrangements are unlikely to provide the con-
ditions needed to maintain stable government. Support for these assumptions is
found in Spinoza’s political writing. ‘I am fully persuaded’, he explains, ‘that experi-
ence has revealed all conceivable sorts of commonwealth, which are consistent
with men’s living in unity, and likewise the means by which the multitude may be
guided or kept within fixed bounds’. He goes on to cast doubt on the belief that ‘we
can by meditation discover in this matter anything not yet tried and ascertained,
which shall be consistent with experience or practice’. Spinoza is not simply mak-
ing an argument about the variety of governmental forms to be found in history, or
claiming that the variation is such that we are unlikely to be able to devise a better
scheme through speculative reason. The essence of his claim is that ‘men are so situ-
ated, that they cannot live without some general law’.² So, although the search for
right ordering must be rooted in historical experience and must acknowledge the
variety of forms that history exhibits, unless such schemes meet certain basic condi-
tions, they will be unable to sustain governmental ordering.
On the basis of these assumptions, public law can be presented in a relatively
coherent form. We begin by specifying the practices that meet Spinoza’s tests of
generality, unpacking their meaning, and then exhibiting the ways in which they
relate to one another. But a governing regime that forms a coherent arrangement
does not amount to a model constitution. The type of practices with which we
are concerned, ranging from the ultimate decision-making authority of rulers to
citizens’ claims to possess inalienable rights, are riddled with ambiguity, and may
even incorporate contradictory claims. After acknowledging the need for gen-
eral laws, Spinoza immediately noted that these ‘general laws and public affairs
are ordained and managed by men of the utmost acuteness, or, if you like, of
great cunning or craft’.³ But notwithstanding the duplicitous character of some
of these practices, it may still be possible to make sense of them and identify the
type of constitutional scheme they disclose.⁴
What follows is that it is impossible to undertake a critical analysis of any gov-
erning regime without first examining its mode of evolution. This is not the sort
¹ GWF Hegel, Philosophy of Right [1821] TM Knox (trans) (Oxford: Oxford University Press,
1952), §286R.
² Benedict de Spinoza, Tractatus Politicus [c1677] in Tractatus Theologico-Politicus, Tractatus
Politicus RHM Elwes (trans) (London: Routledge, c1951), 279–387, 288.
³ Ibid.
⁴ See Charles Taylor, ‘Interpretation and the Sciences of Man’ in his Philosophy and the Human
Sciences: Philosophical Papers, vol.2 (Cambridge: Cambridge University Press, 1985), 1–57, esp 24.
I. Right Ordering 93
of exercise that can be invented by philosophers. Spinoza supplies the reasons.

At the beginning of his Tractatus Politicus, he argues that there is an inappro-
priate tendency for philosophers to ‘conceive of the passions which harass us as
vices into which men fall by their own fault’, and the philosophers, therefore, in
a bid to present themselves as higher moral beings, ‘generally deride, bewail, or
blame them, or execrate them’. The problem is that ‘they conceive of men, not
as they are, but as they themselves would like them to be’. They ‘think they are
doing something wonderful, and reaching the pinnacle of learning, when they
are clever enough to bestow manifold praise on such human nature, as is nowhere
to be found’, but nothing could be further from the case.⁵ Consequently, when
writing of public law, ‘instead of ethics, they have generally written satire’ and
instead of a theory of politics they produce a chimera, such as ‘might be found in
Utopia, or in that golden age of the poets when, to be sure, there was least need of
it’.⁶ No men, Spinoza concludes, ‘are esteemed less fit to direct public affairs than
theorists or philosophers’.⁷ For understanding, we must turn to history and the
philosophy of immanence.
We begin with the recognition that any actual configuration of governmental
practices (eg, in the constitution of the British state) invariably exhibits contest-
able particularizations of ‘political right’. Historical investigation often reveals
that such institutionalized practices are partial, limited, and contingent expres-
sions of more general ideas of right ordering. Further, the exercise of bringing
such ideas of right ordering to consciousness—of reflecting on these practices,
of ‘theorizing’—not only involves making these constitutional self-understand-
ings explicit; the exercise also provides the means by which the adequacy of these
practices can be extended, criticized, and challenged.⁸
Because these practices incorporate the ways in which subjects themselves per-
ceive the nature of the activity of governing—that is, because they concern claims
of political right—latent possibilities can be discovered within the interstices of
extant forms.⁹ To the extent that relatively coherent shapes may be discerned in
these arrangements, we might invoke an architectural metaphor. In this sense,
⁵ Spinoza, above n 2, 286. ⁶ Ibid.

⁷ Ibid. Cf Hegel, above n 1, 11: ‘To comprehend what is, this is the task of philosophy, because
what is, is reason. It is just as absurd to fancy that a philosophy can transcend its contemporary
world as it is to fancy that an individual can overleap his own age, jump over Rhodes. If his theory
really goes beyond the world as it is and builds an ideal one as it ought to be, that world exists
indeed, but only in his opinions, an unsubstantial element where anything you please may, in
fancy, be built’.
⁸ See Charles Taylor, ‘Social Theory as Practice’ in Taylor, above n 4, 91, esp 94; cf Michael
Oakeshott, ‘What is Political Theory?’ [1973] in his What is History? and Other Essays Luke
O’Sullivan (ed) (Exeter: Imprint Academic, 2004), 391–402.
⁹ Cf Hegel, above n 1, 12: ‘To recognize reason as the rose in the cross of the present and thereby
to enjoy the present, this is the rational insight which reconciles us to the actual, the reconciliation
which philosophy affords to those in whom there has once arisen an inner voice bidding them to
comprehend . . . to possess subjective freedom while standing not in anything particular and acci-
dental but in what exists absolutely’.
the objective in studying the foundations of public law is to expose the architec-
tonic structure of modern governmental ordering.
II. Early-Modern Formation
In the medieval world, king and people were perceived as being bound together
in an objectively formed right order in which both had duties to perform under
God and the law. Upholding the law—that is, doing justice—was one of the
king’s main duties. A true king, Cromartie notes, was ‘one who acted rightly . . . to
promote the common weal of the community’, and this is reflected in the fact
that ‘the word rex was often derived from recte agendo’.¹⁰ In this world view, gov-
ernment was established to protect the law, and it lost its authority when acting in
violation of the law. This, however, is not the world of public law: in the medieval
world view there was no concept of the state, or of sovereignty, or indeed of the
system of government as a construction. There was, strictly, no conception of
public law.¹¹
The architectural metaphor comes into play only with the modern relation-
ship between government and law. In the République, Bodin used this metaphor
when explaining the significance of the ‘fundamental laws’ of the public realm.
Arguing that sovereign authority—including the power of law-making—is abso-
lute, he carefully drew a distinction between sovereignty and government.¹² So,
although sovereign authority is absolute, the sharing of governmental tasks is an
essential aspect of a well-ordered state. The reason is that ‘the less the power of
the sovereignty is (the true marks of majesty thereunto still reserved) the more
it is assured’. In explaining this paradox, Bodin explicitly uses architectural
imagery: ‘For hard it is for high and stately buildings long to stand’, he explains,
‘except they be upholden and staid by most strong shores, and rest upon most
sure foundations’.¹³
This architectural metaphor is central to a debate that emerged during the sev-
enteenth century about the character of ‘fundamental law’. Thompson suggests
¹⁰ Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450–
1642 (Cambridge: Cambridge University Press, 2006), 7.
¹¹ See Fritz Kern, Kingship and Law in the Middle Ages [1914] SB Chrimes (trans) (Oxford:
Blackwell, 1948). Kern notes in particular that in the medieval world, ‘there is no special public
law, no differentiation of public from private right’ (at 182). More generally, there can be no idea of
the state, of state necessity, of the state itself as superior to all law. In the modern world, by contrast:
‘Every single organ of the State, even the government, stands under this positive law, but the State
as a whole stands above it. The State, not the positive law, is sovereign. Whilst, therefore, the gov-
ernment is bound to the law, even if a different law, in the same way as the medieval monarch, the
modern State as a whole is bound to no law, but is superior to all law’ (at 200).
¹² Jean Bodin, The Six Bookes of a Commonweale [1606] Richard Knolles (trans)
Kenneth Douglas McRae (ed) (Cambridge, MA: Harvard University Press, 1962), Bk II;
see above ch 2, 58.
¹³ Ibid, 517.
that the phrase was first used in the late-sixteenth century in Beza’s Du droit
des magistrats (1573), noting that ‘wherever the vocabulary of fundamental law
appears, a manner of thinking in which laws are pacts and political arrangements
are buildings was always close by’.¹⁴ Thompson shows how this body of work
contained a tension between those claiming that fundamental law was funda-
mental because it was ancient and traditional and those who argued that it was
fundamental as a matter of objective right. While the English writers exemplified
the former approach and the continental jurisconsults the latter, these were not
competing but complementary inquiries; as Thompson puts it, ‘history portrayed
what reason taught’.¹⁵
The most sophisticated attempt to build a theory of the state on the founda-
tion of fundamental law was the Politica methodice digesta of Johannes Althusius.
Althusius based his theory on the idea of an original compact and the doctrine
of indivisible popular sovereignty, and also on the autonomy of politics.¹⁶ The
concept of fundamental law formed the theory’s central feature. ‘In the election
of the supreme magistrate’, he argues, ‘the highest concern must be for the funda-
mental law of the realm (lex fundamentalis regni)’. This fundamental law ‘serves
as the foundation . . . of the realm and is sustained by the common consent and
approval of the members of the realm’. Since it is only through this law that all
members are united in common association, law must be treated as ‘the lodestone
(columna) of the realm’.¹⁷ Althusius’ use of the concept of fundamental law pro-
vides us with the first systematic account of government as a constructed arrange-
ment underpinned by positive constitutional law.
Althusius argues that the system of government to be constructed must incor-
porate institutional limitations on the power of the ruler. This follows from the
fact that ‘the commonwealth or realm does not exist for the king, but the king
and every other magistrate exist for the realm and polity’.¹⁸ The restraints take
institutional form in the Ephorate, a specially appointed group who do not rule
but who have the fundamental right to establish, to restrain, and ultimately—in
the case of tyranny—to remove a ruler.¹⁹ Althusius justifies these arrangements
by plagiarizing Bodin. ‘The less the power of those who rule’, he argues, ‘the more
lasting and stable the imperium is and remains’.²⁰
Although Althusius’ account marks a genuine innovation, aspects of his
writing still depend on medieval constitutionalism and he was for that reason
opposed by modernizers like Grotius, Hobbes, and Pufendorf. They contended
that the constitution of sovereignty left no room for a concept of fundamental
¹⁴ Martyn P Thompson, ‘The History of Fundamental Law in Political Thought from the
French Wars of Religion to the American Revolution’ (1986) 91 American Historical Review
1103–1128, 1111.
¹⁵ Ibid, 1112. ¹⁶ See above ch 2, 70–71.
¹⁷ Johannes Althusius, Politica: Politics Methodically Set Forth and Illustrated with Sacred
and Profane Examples [1603] Frederick S Carney (trans and ed) (Indianapolis: Liberty Fund,
1995), 128.
¹⁸ Ibid, 93. ¹⁹ Ibid, ch 18. ²⁰ Ibid, 98.
law. Hobbes’ argument in Leviathan is particularly helpful in highlighting the
division. Stripped to its essentials, his argument is that ‘by Art is created that
Leviathan called a Commonwealth or State’, that this commonwealth is ‘but an
artificial Man’, and that it is made by ‘Pacts and Covenants’.²¹ But although he
uses the language of an originating covenant, Hobbes emphasizes that this cov-
enant cannot be the source of fundamental law in Althusius’ sense: in Hobbes’
scheme, the people covenant entirely to alienate their natural rights and vest
absolute authority in the sovereign.
Hobbes’ definition of law is of critical importance to this architectonic account
of public law. Hobbes broke with the ancient idea of law as custom and maintained
that law is a purely human artefact promulgated by the governing authority. Law,
he contended, is but ‘the Reason of this our Artificial Man the Commonwealth’
and it is ‘his Command that maketh Law’.²² Suggesting there was much confu-
sion about fundamental law, he offered his own distinction: ‘a fundamental law
in every Commonwealth is that, which being taken away, the Commonwealth
faileth, and is utterly dissolved; as a building whose Foundation is destroyed’.²³
Hobbes’ objective here was to turn against itself the argument that the political
compact could amount to fundamental law. He argued that ‘a Fundamental Law
is that by which Subjects are bound to uphold whatsoever power is given to the
Sovereign . . . without which the Commonwealth cannot stand’.²⁴ The only fun-
damental law in accordance with this definition is the requirement on the part of
subjects to obey the rules prescribed by the sovereign.
Hobbes accepts that when the people establish a commonwealth they must
seek ‘one firm and lasting edifice’. And ‘they cannot without the help of a very
able Architect, be compiled into any other than a crazy building, such as hardly
lasting out their own time, must assuredly fall upon the heads of their posterity’.²⁵
The critical point is that for Hobbes the architect of the arrangement is the sover-
eign.²⁶ Since the sovereign possessed an absolute power of law-making, the rela-
tionship between sovereign and subject could not be regulated by law. Within
this scheme there could be no concept of fundamental law.
To grasp Hobbes’s views on this matter, it is necessary to attend to the distinc-
tion he makes between law and right. Breaking with the ancient arts of Juris
Prudentia, he argued that law ‘is not counsel, but command’.²⁷ By ‘law’ Hobbes
meant positive law, insisting that since positive law provided ‘the measure of good
and evil actions’, there could be no such thing as an unjust law.²⁸ But he did rec-
ognize the existence of a concept of right. Hobbes argued that right ‘consists in
²¹ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 9.
²² Ibid, 187. ²³ Ibid, 200. ²⁴ Ibid. ²⁵ Ibid, 221.
²⁶ Thompson, above n 14, 1115 argues: ‘Precisely those things that Hobbes thought fundamen-
tal law gave to the sovereign were the things that advocates [such as Althusius] thought fundamen-
tal laws were needed to limit’.
²⁷ Hobbes, above n 21, 183. ²⁸ Ibid, 223.
liberty to do, or to forbear’, whereas law ‘determines and binds’.²⁹ Elaborating on

this point in De Cive, he explained that since it is not the object of legal regulation
to bring all actions of citizens within its scope, in those things that are neither
commanded nor forbidden each individual retained their liberty of action. By
liberty, Hobbes simply meant ‘that part of natural right which is allowed and left
to the citizens by the civil laws’.³⁰
Hobbes’ distinction between right and law reveals his position with respect
to constitutional architecture. Although he claimed that there can be no such
thing as an unjust law, he did recognize the notion of a ‘good’ law. A good law is
that which ‘is Needful, for the Good of the People, and withall Perspicuous’.³¹ The
law-making power exists ‘not to bind people from all voluntary actions’ but to
guide them so as ‘not to hurt themselves by their own impetuous desires, rash-
ness, or indiscretion’.³² Unnecessary laws are not good laws, and neither are those
that benefit rulers but not the people.³³ A well-governed state is therefore one in
which, without endangering the public good, civil liberty is maximized. This
notion of goodness or rightness is to be found implicit in the office of the sover-
eign. ‘It belongs . . . to the office of the sovereign’, Hobbes states, ‘to make a right
application of punishments and rewards’; indeed, the sovereign has a duty to use
these powers not to wreak revenge or benefit retainers but only to promote ‘bene-
fit to the commonwealth’.³⁴ Hobbes here recognizes the need for the sovereign to
be versed in ‘the art of making fit laws’,³⁵ a responsibility requiring the appoint-
ment of ‘good counsellors’, those that have ‘most knowledge of those things that
conduce to the peace, and defence of the commonwealth’.³⁶
Hobbes thus accepts that although the sovereign possesses an absolute power
of law-making, that power must be properly exercised. This notion of ‘proper
exercise’ incorporates certain prudential precepts that ensure the maintenance
of a strong and permanent state. ‘All the duties of sovereigns’, he stated in De
Cive, ‘are implicit in this one phrase: the safety of the people is the supreme law’.³⁷
And although those holding the sovereign power cannot be subject to ‘laws prop-
erly so-called, i.e. to the will of men’, it remains ‘their duty to obey right reason
²⁹ Ibid, 91.
³⁰ Thomas Hobbes, On the Citizen [1647] Richard Tuck and Michael Silverthorne (trans and
eds) (Cambridge: Cambridge University Press, 1998), 150–151.
³¹ Hobbes, above n 21, 239 (emphasis in original).
³² Ibid. In Leviathan, Hobbes uses the simile of laws being like hedges, which ‘are set, not to
stop travellers, but to keep them in their way’ (ibid, 239–240). In De Cive, he uses river banks as
the appropriate figure of speech: ‘Water stagnates and corrupts when it is closed in by banks on all
sides; when it is open on all sides it spreads, and the more outlets it finds the freer it is. So with the
citizens: they would be without initiative if they did nothing except at the law’s command; they
would be dissipated if there were no legal restrictions, and the more things left unregulated by the
laws, the more liberty they enjoy. Both extremes are faulty; for laws were invented not to extinguish
human actions but to direct them; just as nature ordained banks not to stop the flow of the river but
to direct it’ (above n 30, 151).
³³ Hobbes, above n 21, 240. ³⁴ Ibid, 240–241. ³⁵ Ibid, 221.
³⁶ Ibid, 242. ³⁷ Hobbes, above n 30, 143.
[rectae rationi ] in all things so far as they can; right reason is the natural, moral
and divine law’.³⁸ This is not a generalized appeal to natural law. He makes it
clear that ‘just as the people’s safety dictates the law by which princes come to
know their duty, it also teaches them the art by which they look after their own
interest’.³⁹ Hobbes links those duties determined by the need to exercise public
power for the good of the people to the necessity of rulers, in their own interests,
to accept these responsibilities, and recognizes that the sovereign can build a last-
ing state only when acting in accordance with reason of state. In emphasizing the
need to be clear about the character of positive law, Hobbes also acknowledges
the importance of the precepts of political right.
III. The Architectural Metaphor
The architectural imagery used by Bodin, Althusius, and Hobbes expresses

a common rationalist commitment. Foucault claims that this common move-
ment was shaped between 1580 and 1650, a period in which it was shown ‘that
ultimately God only rules the world through general, immutable, and universal
laws, through simple and intelligible laws that are accessible either in the form
of measurement and mathematical analysis, or in the form of classificatory ana-
lysis . . . or in the form of logical analysis’.⁴⁰ One of the pivotal philosophers of this
period was René Descartes, who wrote in the period that separates Bodin from
Hobbes. Descartes invented a revolutionary method in his search for truth. ‘I was
convinced’, he wrote in later life, ‘of the necessity of undertaking . . . to rid myself
of all the opinions I had adopted, and of commencing anew the work of building
from the foundation, if I desired to establish a firm and abiding superstructure
in the sciences’.⁴¹ The Cartesian method of doubt was to have a major influence
on modern philosophy. For our purposes, what is particularly significant was his
emphasis on the importance of getting the foundations right.
In A Discourse on Method (1637), Descartes makes explicit use of architectural
imagery. He proposes that ‘there is seldom so much perfection in works composed
of many parts, upon which different hands had been employed, as in those com-
pleted by a single master’. Therefore, ‘the buildings which a single architect has
planned and executed, are generally more elegant and commodious than those
³⁸ Ibid. See also Thomas Hobbes, De Cive: The Latin Version Howard Warrender (ed) (Oxford:
Clarendon Press, 1983), 195.
³⁹ Ibid.
⁴⁰ Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78
Michel Senellart (ed) Graham Burchell (trans) (London: Palgrave, 2007), 234–235. See also
Foucault, The Order of Things: An Archaeology of the Human Sciences (London: Routledge, 2001),
55–64.
⁴¹ René Descartes, Meditations on First Philosophy [1641] in Descartes, A Discourse on Method,
Meditations on the First Philosophy, Principles of Philosophy John Veitch (trans) (London: Dent,
1994), 59–131, 74.
which several have attempted to improve, by making old walls serve for purposes
for which they were not originally built’. Extending his theme to towns and cit-
ies, Descartes observes that ‘those ancient cities which, from being at first only
villages, have become in the course of time, large towns, are usually but ill laid
out compared with the regularly constructed towns which a professional archi-
tect has freely planned on an open plain’. As a consequence, ‘although the several
buildings of the former may often equal or surpass in beauty those of the latter,
yet when one observes their indiscriminate juxtaposition, there is a large one and
here a small, and the consequent crookedness and irregularity of the streets, one
is disposed to allege that chance rather than any human will guided by reason
must have led to such an arrangement’.⁴²
Given Descartes’ rationalist tendencies, we can guess the import of this mes-
sage when it is extended to nations and states. Initially, he does not disappoint:
‘those nations which, starting from a semi-barbarous state and advancing to
civilisation by slow degrees, have had their laws successively determined, and,
as it were, forced upon them simply by experience of the hurtfulness of par-
ticular crimes and disputes, would by this process come to be possessed of
less perfect institutions than those which, from the commencement of their
association as communities, have followed the appointments of some wise
legislator’.
But then comes a surprise. Turning to the state, he openly acknowledges dif-
ficulties: ‘It is true that it is not customary to pull down all the houses of a
town with the single design of rebuilding them differently, and thereby render-
ing the streets more handsome’. And this analogy persuades him that ‘it would
indeed be preposterous for a private individual to think of reforming a state by
fundamentally changing it throughout, and overturning it in order to set it up
amended’.⁴³
Descartes expresses disapproval of ‘meddlers’ who ‘called neither by birth nor
fortune to take part in the management of public affairs, are yet always projecting
reforms’; statecraft requires ‘a larger measure of genius’ and once inexperienced
reformers ‘quit the beaten highway, they will never be able to thread the byway
that would lead them by a shorter course, and will lose themselves and continue
to wander for life’. Much safer to place trust in the ways of history:
If there are any imperfections in the constitutions of states (and that many such exist the
diversity of constitutions is alone sufficient to assure us), custom has without doubt mate-
rially smoothed their inconveniences, and has even managed to steer altogether clear of,
or insensibly corrected a number which sagacity could not have provided against with
equal effect; and, in fine, the defects are always more tolerable than the change necessary
for their removal.⁴⁴
⁴² René Descartes, A Discourse on Method [1637] in Descartes, ibid, 1–57, 10.

⁴³ Ibid, 11. ⁴⁴ Ibid, 11–12.
Descartes, the arch-rationalist, draws the line at state-building.
Descartes’ experiences of the state led him ‘to infer’ that our views on such mat-
ters are based ‘far more [on] custom and example than any certain knowledge’.⁴⁵
Consequently, ‘before commencing to rebuild the house in which we live [sc. the
state], . . . it is likewise necessary that we be furnished with some other house in
which we may live commodiously during the operations’.⁴⁶ Recognizing the dif-
ficulties of achieving this, Descartes offers three maxims to follow. The first is ‘to
obey the laws and customs of my country, adhering firmly to the faith in which,
by the grace of God, I had been educated from my childhood’.⁴⁷ Secondly, ‘to be
as firm and resolute in my action as I was able’.⁴⁸ Thirdly, ‘to endeavour always to
conquer myself rather than fortune, and change my desires rather than the order
of the world’.⁴⁹ What started as a radical reconstructive project becomes, in the
political context, a much more modest undertaking.⁵⁰
Other scholars have appropriated Descartes’ metaphor. In his classic nine-
teenth-century work, Bagehot made use of it when developing his thesis that
the British constitution accommodated ‘double government’. First, there is the
‘dignified’ aspect, the ‘paper description’ of the constitution, which is ancient
and theatrical and which serves, through the reverence of the people, to generate
authority. Then there is the ‘efficient’ aspect, the ‘living reality’, which is modern
and functional and which serves, through the ‘efficient secret’ of the constitution
(‘the close union . . . of executive and legislative powers’) to ‘employ that power’.⁵¹
English law, he suggests, ‘very often reminds one of those outskirts of cities where
you cannot for a long time tell how the streets come to wind about in so capri-
cious and serpent-like a manner’. It makes sense only when ‘it strikes you that
they grew up, house by house, on the devious tracks . . . and if you follow on to the
existing fields, you may often find the change half complete’. This is also the case
with respect to constitutional understanding since ‘the lines of our Constitution
were framed in old eras of sparse population, few wants, and simple habits’. So,
⁴⁵ Ibid, 13. ⁴⁶ Ibid, 18. ⁴⁷ Ibid. ⁴⁸ Ibid, 19. ⁴⁹ Ibid, 20.

⁵⁰ Th is dimension to Descartes’ thought suggests that he is closer to his detractors than
some have assumed. Cf Willard Van Orman Quine, Word and Object (Cambridge, MA: MIT
Press, 1960), 3–5: ‘Neurath has likened science to a boat which, if we are to rebuild it, we must
rebuild plank by plank while staying afloat in it. The philosopher and the scientist are in the same
boat. . . . Our boat stays afloat because at each alteration we keep the bulk of it intact as a going
concern. Our words continue to make passable sense because of continuity of change of theory:
we warp usage gradually enough to avoid rupture. . . . Analyze theory-building how we will, we
all must start in the middle. Our conceptual firsts are middle-sized, middle-distanced objects,
and our introduction to them and to everything comes mid-way in the cultural evolution of the
race. In assimilating this cultural fare we are little more aware of a distinction between report and
invention, substance and style, cues and conceptualization, than we are of a distinction between
the proteins and carbohydrates of our material intake’. The idea of Neurath’s boat in itself is a
reflection of an ancient juristic image, one that was prevalent in classical Roman literature as well
as the English common law: see Ernst H Kantorowicz, The King’s Two Bodies: A Study of Medieval
Political Theology (Princeton, NJ: Princeton University Press, 1957), 295.
⁵¹ Walter Bagehot, The English Constitution [1867] Miles Taylor (ed) (Oxford: Oxford University
Press, 2001), 5–9.
while scholars may argue that ‘no nation with any sort of logic in them could ever
make such a constitution . . . in fact no one did make it’. Echoing Descartes’ view
of meddlers, Bagehot concludes that ‘you must take the trouble to understand the
plan of an old house before you can make a scheme for mending it; simple dia-
grams are very well on an empty site, but not upstairs in a gothic mansion’.⁵²
In his Philosophical Investigations, Wittgenstein extends Descartes’ metaphor
to language itself: ‘Our language can be seen as an ancient city: a maze of little
streets and squares, of old and new houses, and of houses with additions from
various periods; and this surrounded by a multitude of new boroughs with regu-
lar straight streets and uniform houses’.⁵³ Wittgenstein’s insight has since been
applied by Tully to the language of constitutions. Using Wittgenstein’s observa-
tion to mount a fundamental critique of the imperialistic tendencies of modern
constitutionalism, Tully argues that modern constitutionalism—the architec-
tural form of modern constitution-building—suppresses cultural diversity, a
suppression which over the last 300 years has been used by European states as a
technique of governing.⁵⁴ Tully’s argument suggests that there can be no compre-
hensive theory of constitutions; the attempt to establish a specific type of consti-
tutional architecture as standard must always amount to an imperialist project.⁵⁵
The presumption of seeking to do so, he suggests, arises from what Wittgenstein
calls the ‘craving for generality’, which has its source in ‘our preoccupation with
the method of science’.⁵⁶
One clear message emerges: use of the architectural metaphor with respect to
public law highlights yet again the tensions between reason and history, rational-
ism and empiricism.⁵⁷ The message is that, when thinking of public law in archi-
tectural terms, we should remain attentive to the dangers of seeking to impose a
standard template. Or, as Condillac puts it, ‘the absurdity of building vast con-
structions on abstract principles’ is nothing less than an attempt to build ‘the
unknowable on the unknown’.⁵⁸
There are, then, obvious difficulties in suggesting that the institutional forms
of the modern state can be attributed to a single architect or to a standard design.
⁵² Ibid, 189–191.
⁵³ Ludwig Wittgenstein, Philosophical Investigations [1945] GEM Anscombe (trans) (Oxford:
Blackwell, 1967), §18.
⁵⁴ James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press, 1995), esp 103–114.
⁵⁵ James Tully, ‘The Imperialism of Modern Constitutional Democracy’ in Martin Loughlin
and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form
(Oxford: Oxford University Press, 2007), 315–338; James Tully, ‘Situated creatively: Wittgenstein
and political philosophy’ in his Public Philosophy in a New Key: Vol. 1: Democracy and Civic Freedom
(Cambridge: Cambridge University Press, 2008), 39–70.
⁵⁶ Tully, above n 54, 105.
⁵⁷ Cf Francis Bacon’s aphorism: ‘empiricists are like ants; they collect and put to use; but ration-
alists, like spiders, spin threads out of themselves’: cited in John Cottingham, Rationalism (London:
Paladin, 1984), 7–8.
⁵⁸ Peter Gay, The Enlightenment: An Interpretation (New York: Knopf, 1966), 139 (paraphrasing
Condillac).
There may be a common set of repertoires, but their meaning cannot easily be
derived from logical analysis of formal structures. The relationship between for-
mal edifice (the ‘paper description’) and political function (the ‘living reality’)
remains ambiguous. No one has expressed these complexities more elegantly than
Oakeshott who, in his essay on the modern European state, explained that this
state is ‘constructed for the most part out of second-hand materials: a dwelling
built by many hands, over many years, in response to circumstantial wants, out
of materials’ borrowed from earlier governing regimes.⁵⁹ Extending the architec-
tural imagery, he writes that:
Some of the stones have been recut and reshaped, others have been left very much as they
were when pulled out of the ruins; all have been fitted together differently and put to new
uses. But since there was no architect, understanding it cannot be an inquiry into inten-
tion. A somewhat ramshackle construction, it was contrived by artisans who were their
own designers following conventions they made for themselves. The character of a state is
not a model from which copies may be struck off; it is what the effort to understand this
experience had made of it.⁶⁰
This is a warning to those who seek to impose an inordinately rational edifice
over such governmental arrangements.
IV. The Architecture of Power
The single most important feature in the formation of sovereignty has been the
disappearance of the external authority figure anchoring the arrangements of
government. In the medieval world, this role was performed by a divine source
of authority. In the transition to modernity that role was taken over by a ‘mortal
God’—the figure of the sovereign. But this worldly sovereign was an essentially
transitory figure. Exaltation was required as a precondition of destruction: in
order to establish conditions of absolute authority—the creation of the autonomy
of the public sphere—the sovereign, as the representative of the state, had first to
be separated from, and elevated above, the people. But given the complexities of
government in the modern world, the increasingly elaborate functions vested in
the sovereign could be exercised only through a set of institutions. The resulting
institutionalization of monarchical power ushered in a process of transformation
in which the sovereign became absorbed into the idea of the state.
This conceptual shift came about as a consequence of the inversion of the rela-
tionship between power and society. Once power is acknowledged as deriving
from the people, the autonomous power of the state is, paradoxically, used for
⁵⁹ Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human
Conduct (Oxford: Clarendon Press, 1975), 185–326, 198.
⁶⁰ Ibid.
social purposes.⁶¹ The sovereign with its prerogatives, as the representative of the
state, is no longer a remote, majestic authority that can be left to pursue its sin-
gular tasks.⁶² It becomes a public office that serves social objectives. One con-
sequence of this is that state action is re-orientated away from the external and
towards internal considerations. Until this point, rulers sought to enhance their
power through war and the acquisition of further lands. In the modern world,
by contrast, this imperative of conquest had to be tempered by internal require-
ments. This did not mean simply an intensification of the struggle between king
and people over the supply of revenue. Although it remained a characteristic point
of tension, this struggle—a central narrative of most constitutional histories—
was superseded once governmental offices were occupied by representatives of
the people. What became of much greater significance was the recognition that
the political power of the state could be enhanced only by harnessing the social
power of the people.
This has had a profound effect on our understanding of the architecture of
public power. Power that once had its source externally is now generated by its
own mode of operations. Further, once social power manifests itself through
political forms, political power has the capacity to absorb everything. Since this
is potentially a vast and unruly force, this type of power stands in need of insti-
tutionalization, regulation, and management. The emergence of this power is
therefore associated both with the institutional differentiation of state power and
the systematic deployment of disciplinary mechanisms that promote the internal
regulation of the people.⁶³
The notion of an architecture of power offers a key to understanding the
foundations of public law. Consider the central theme of Spinoza’s Tractatus
Theologico-Politicus: how can the claim that the sovereignty of the state is absolute
be reconciled with the necessity that individuals be accorded the greatest possible
freedom? Spinoza acknowledges that the compact into which individuals enter
in order to form the state vests the state with absolute authority. The state has
⁶¹ See Marcel Gauchet, The Disenchantment of the World: A Political History of Religion Oscar
Burge (trans) (Princeton, NJ: Princeton University Press, 1997), 195: ‘The State’s concrete infi ltra-
tion into society depended on an abstract splitting off from society . . . The greater the State’s role in
social life, the more it became an integral everyday part of the collective mechanism, and the more
it operated invisibly in the name of complete detachment from the common sphere. Its immanence
in civil society grew with its ideal transcendence’.
⁶² Cf Niccolò Machiavelli, The Prince [1513] (London: Dent, 1995), Letter of dedication to
Lorenzo de’ Medici (at 37): ‘Nor, I hope, will it be considered impudent that a man of low and
mean station presumes to discuss and arrange the government of princes. For just as those who
draw maps place themselves low down on the plains to consider the nature of mountains and high
places, and place themselves in the mountains and high places to consider the plains, so in the same
way it is necessary to be a prince in order to understand clearly the nature of the people and to be of
the people to understand the nature of princes’.
⁶³ Foucault, above n 40, 44–45: ‘Discipline is essentially centripetal. I mean that discipline
functions to the extent that it isolates a space, that it determines a segment. Discipline concen-
trates, focuses, and encloses. The first action of discipline is in fact to circumscribe a space in which
its power and the mechanisms of its power will function fully and without limit’.
‘sole and unquestioned dominion’ and the ‘sovereign power is not restrained by
any laws, but everyone is bound to obey it in all things’. But he argues that ‘this
danger of submitting absolutely to the dominion and will of another is one which
may be incurred with a light heart’.⁶⁴ Why so sanguine?
The answer is in the distinction Spinoza draws between two Romanist concep-
tions of power: potestas and potentia. Potestas is the rightful power of an office-
holder, the authority to rule. This is the type of power which, when extensive, is
called imperium. Potentia, by contrast, refers to actual physical power, the type of
power that derives from the state’s control of resources. The latter refers not to a
government’s absolute power of rule but to its ability to enlist continuous support
for its designs and to be able to act effectively to realize its purposes. The full sig-
nificance of potentia becomes apparent once we see that for Spinoza right derives
from power. The sovereign possesses a right of rule ‘only so long as he can main-
tain his power of enforcing his will’.⁶⁵ Once this power (potentia) disappears, the
right to command (potestas) is also lost. It is for this reason that sovereigns rarely
impose irrational commands, ‘for they are bound to consult their own interests,
and retain their power by consulting the public good and acting according to
the dictates of reason’.⁶⁶ He illustrates this point with an aphorism of Seneca’s:
violenta imperia nemo continuit diu; no one who relies on the use of violence will
be able to govern long.
Spinoza’s argument does not seek to justify the idea of right, or to promote the
claim of ‘might is right’.⁶⁷ His purpose is to demonstrate how the concept of right
(jus) works. In the state of nature, individuals possess a range of aptitudes and
strengths and each will be more or less autonomous beings. But, as Balibar’s com-
mentary on Spinoza notes, ‘a formula such as “men are born and remain free and
equal in their rights” would have no sense from [Spinoza’s] perspective’. Birth is
not the time when the individual can affirm this right: ‘it is the moment at which
the individual is, in himself, most powerless’.⁶⁸ Given that individuals in their
natural state are marked by inequalities, some type of institutional framework is
required before relations of equality can be formulated. The newborn needs the
active protection of others before any right can be acquired. Spinoza is critical
⁶⁴ Benedict de Spinoza, Tractatus Theologico-Politicus [1670] in Tractatus Theologico-Politicus,

Tractatus Politicus, above n 2, 1–282, 205.
⁶⁵ Ibid. This is an aspect of his basic thesis that in a state of nature ‘every individual has the
sovereign right to do all that he can; in other words, the right of an individual extends to the utmost
limits of his power as it has been conditioned’ (at 200).
⁶⁶ Ibid, 205–206. See also at 258: ‘I grant that [the sovereign] has the right to rule in the most
violent manner . . . Nay, inasmuch as such things cannot be done without extreme peril to itself, we
may even deny that it has the absolute power to do them, or, consequently, the absolute right; for
the rights of sovereigns are limited by his power’.
⁶⁷ See Edwin Curley, ‘Kissinger, Spinoza, and Genghis Khan’ in Don Garrett (ed), The
Cambridge Companion to Spinoza (Cambridge: Cambridge University Press, 1996), 315–343, 322:
‘Generally Spinoza will express his thesis about the relation between right and power by saying that
right extends as far as power does. He does not identify the two concepts’.
⁶⁸ Etienne Balibar, Spinoza and Politics Peter Snowden (trans) (London: Verso, 1998), 60.
of scholastic expressions of right, whether objective, as the expression of a prior,

divinely inspired order, or subjective, as the expression of a universal human char-
acteristic of autonomy.⁶⁹ An individual’s right is simultaneously an expression of
power. Individuals live in a relation of mutual independence, in that one is able
‘in general to live after his own mind’, and dependence, in that he is ‘rightfully
dependent on another’.⁷⁰
Given this mutuality, we can see why Spinoza does not regard sovereign power
and individual right as inherently antagonistic, especially since ‘if two come
together and unite in their strength, they have jointly more power . . . and the
more there are that have so joined in alliance, the more right they all collectively
will possess’.⁷¹ The individual is to be seen ‘not as an obstacle to the sovereign’s
power (potestas) but an active, constituent element of the power (potentia) of the
state’.⁷² The immanent relations of sovereignty evolve as the dynamic of depend-
ence-independence generates ‘real’ power, a power generated from limitations
and functional differentiations intrinsic to the process.
Spinoza argues that in a democracy, the form of government implicit in the
idea of a compact, ‘it is almost impossible that a majority of a people . . . should
agree in an irrational design’. Since the objective of government is ‘to bring
men as far as possible under the control of reason, so that they may live in
peace and harmony’, if this condition were removed, ‘the whole fabric falls
to ruin’. But under appropriate conditions, the duty of subjects is to obey the
sovereign’s commands. Are we not then turning subjects into slaves? Th is,
argues Spinoza, is based on a misconception of freedom. Although ‘action
in obedience to orders does take away freedom in a certain sense . . . it does
not, therefore, make a man a slave’. A slave ‘is one who is bound to obey his
master’s orders, though they are given solely in the master’s interest’, whereas
a subject ‘obeys the orders of the sovereign power, given for the common inter-
est, wherein he is included’.⁷³ The object of government ‘is not to change men
from rational beings into beasts or puppets, but to enable them to develop
their minds and bodies in security, and to employ their reason unshackled’.
The ‘true aim of government is liberty’.⁷⁴
Since the state builds its strength from the bonds of allegiance of its people,
the best way of enhancing sovereign power is to establish institutions of govern-
ment that generate trust and then to grant extensive civil liberties. Since liberties
of opinion, belief, and speech ‘can be conceded to every man without injury to
the rights and authority of the sovereign power’, Spinoza claims that ‘every man
should think what he likes and say what he thinks’.⁷⁵ Thus, ‘everyone submits to
the control of authority over his actions, but not over his judgment and reason’.⁷⁶
Further, since a sovereign ‘who seeks to regulate everything through law, is more
⁶⁹ Spinoza, Tractatus Politicus, above n 2, 291–300 (II. Of natural right).

⁷⁰ Ibid, II.9 (295). ⁷¹ Ibid, II.13 (296). ⁷² Balibar, above n 68, 30.
⁷³ Spinoza, above n 64, 206. ⁷⁴ Ibid, 259. ⁷⁵ Ibid, 265.
⁷⁶ Ibid, 263.
likely to arouse vices than to reform them’, the effective limits on the exercise
of public power must be observed: ‘It is best to grant what cannot be abolished,
even though it be in itself harmful’.⁷⁷ The sovereign has an absolute right (potes-
tas) to rule, but this right is retained ‘only so long as he can maintain his power
of enforcing his will; otherwise he will totter on his throne, and no one who is
stronger than he will be bound unwillingly to obey him’.⁷⁸ There may be an abso-
lute right to rule, but if the sovereign weakens his power by oppressive or inap-
propriate action, the regime may collapse.⁷⁹
Spinoza’s account of potestas and potentia, building on the relation Bodin
conceives between Book I and Books II–VI of the République,⁸⁰ reveals the
dynamic that drives public law in the modern world. We retain the image of an
all-powerful sovereign who issues orders, while recognizing that the ordering
arrangements of the public sphere impose significant limitations on that formal
jurisdictional authority.
V. Constitutional Architecture
In the modern era, what previously had an external source of authority is now
situated within its own mode of operations: public law acquires its autonomy.
As government ceases to be a remote authority and becomes an active agency
capable of affecting ordinary life, the power of religion dissipates, and political
power has the capacity to absorb everything: potentia grows as potestas apparently
recedes. The ambiguous character of public law is revealed at the very moment it
realizes the conditions of its autonomy.
Th is ambiguity is expressed in the architecture of public law. In the mod-
ern world, public power (potestas) is exercised through the differentiation of
governmental functions between legislative, executive, and judicial institu-
tions. Public power is also often shaped by formal designations of rights of the
citizen. The ever more elaborate networks of governing institutions throw into
relief the dual aspects of both enabling and constraining action. These mod-
ern processes of institutional formation—of constitutionalization—establish
limits to the exercise of so-called despotic power and also form networks that
enhance governmental power. Constitutionalization expresses the processes
⁷⁷ Ibid, 261. ⁷⁸ Ibid, 205.

⁷⁹ For Curley, above n 67, the lack of a specific ‘natural right’ protecting individuals against
abuse by the sovereign authority is ‘a defect in his [Spinoza’s] political philosophy’ (at 335). For an
alternative account that adopts a more political interpretation of Spinoza’s concept of power and
which therefore is able to incorporate civil rights within the concept of power, see Moira Gatens,
‘Spinoza’s Disturbing Thesis: Power, Norms and Fiction in the Tractatus Theologico-Politicus’
⁸⁰ See above ch 2, 58–62.
V. Constitutional Architecture 107
of architectural formation within the modern state, but it is a complex and

ambiguous process.⁸¹
Although the discourse of constitutionalism invariably draws on the language
of fundamental law, strictly speaking, the logic of sovereignty makes fundamen-
tal law redundant. The groundwork for this argument was laid by Hobbes and
Pufendorf who denied that there could be any notion of fundamental law which
imposed legal limitations on the exercise of sovereign power. The implications
of their arguments were not fully revealed until Rousseau worked through the
logic of sovereignty as an immanent process. Rousseau argued that ‘in the State
there is no fundamental law which could not be revoked, not even the social
pact; for if all the Citizens were to assemble to break this pact by common
accord, there can be no doubt that it would be most legitimately broken’.⁸² His
point was not to deny the existence of constitutional laws that were binding on
all officers of the state. Adopting Bodin’s distinction between sovereignty and
government, Rousseau argues that although constitutional laws bind officials,
they cannot bind the holders of sovereignty—‘the people’. The architecture of
constitutional law thus became subordinate to the sovereign will of the people.
With this manoeuvre ‘Rousseau demolished the elaborate intellectual construc-
tions that identified fundamental law not only with contracts but also with the
ancient foundations of the state edifice’.⁸³ In the modern world, the constitu-
tion of government must be differentiated from—and is rendered subordinate
to—the constitution of sovereignty.
Rousseau’s principle was the pivot on which the entire edifice of modern con-
stitutionalism was erected.⁸⁴ From the time of the drafting of the American
Constitution onwards, the architectural metaphor was gradually replaced by the
immanent logic of ‘self-bindingness’. Constitutional ‘architecture’ is now more
generally expressed in the language of constitutional principle or, better still, as
constitutional discourse—the discourse of political right. To specify the charac-
ter of political right, we turn to the two great forms of juridicism that Rousseau
elaborated,⁸⁵ in which the tension between reason and history is again made
manifest.
⁸¹ See Martin Loughlin, ‘What is Constitutionalisation?’ in Petra Dobner and Martin Loughlin
(eds), The Twilight of Constitutionalism? (Oxford: Oxford University Press, 2010), 47–69.
⁸² Jean-Jacques Rousseau, ‘The Social Contract’ in The Social Contract and other later political
writings Victor Gourevitch (ed) (Cambridge: Cambridge University Press, 1997), 120.
⁸³ Thompson, above n 14, 1127.
⁸⁴ Note, eg, how Hamilton explains the power of judicial review not by reference to some natur-
ally founded ‘fundamental law’ but by the principle of delegation and ultimate authority of the
people: James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 78.
⁸⁵ See Michel Foucault, Society Must Be Defended David Macey (trans) (London: Allen Lane,
2003), 208–212.
4
The Science of Political Right: I
Institutional formation in the modern state is expressed through a discourse of

political right. For the purpose of specifying the nature of this discourse, I start
with the work of Jean-Jacques Rousseau, who has done more than any other
thinker to bring out not just its principles, but also its practices. By focusing on
his work, we gain insight not only into the ideals that have shaped public law
thought but also into the practices that pervade modern government arrange-
ments. Rousseau’s thought offers a way of highlighting the tensions and ambigu-
ities between right and power—between potestas and potentia—and it sets a
frame for an inquiry into the fundamentals of the subject.
The key to the investigation lies in the observation that Rousseau offers us
not one but two accounts of political right, and these are based on contrasting
accounts of the nature of the political pact. These accounts are examined in this
and the following chapter. Only by bringing these two accounts into some sort
of alignment, which is attempted in Chapter 6, can the main themes of modern
public law fully be revealed.
I. Political Right
Rousseau’s political writing forms an extended essay on the nature of state-

building understood as a juristic exercise. In The Social Contract, he states that
four types of laws are intrinsic to the overall structure of what he calls the chose
publique or the res publica—the public sphere. The first is the set of laws that
regulate ‘the action of the entire body acting upon itself, that is to say the rela-
tion . . . of the Sovereign to the State’.¹ The laws regulating this relation, he sug-
gests, ‘bear the name of political laws, and are also called fundamental laws’.²
The political laws constitute the form of government, and they give unity and
¹ Jean-Jacques Rousseau, The Social Contract [1762] in The Social Contract and other later politi-
cal writings Victor Gourevitch (ed) (Cambridge: Cambridge University Press, 1997), 39–152, 80.
Since Rousseau, The Discourses and other early political writing, is also edited by Gourevitch and
simultaneously published by Cambridge University Press, these volumes will hereafter be referred
to as vol 1 (early writings) and vol 2 (later writings) in Rousseau, Political Writings.
² Ibid.
meaning to the state. The second type of law is civil law, the law produced as a
consequence of the relation ‘of the members with one another or with the entire
body’.³ The third is the criminal law, the relation ‘of disobedience to penalty’,⁴
but since Rousseau accepts that criminal law is not so much a specific type of law
as a particular sanction with respect to the others, this can, for our purposes, be
discarded. And the final type is custom, a form of law which at this point should
be bracketed. Subject to these adjustments, Rousseau’s classification is reducible
to two main categories: political law and civil (or positive) law.
In The Social Contract Rousseau explains that he is concerned only with the
first type of law: the ‘political laws, which constitute the form of Government’.⁵
This is indeed evident from the subtitle of Le Contrat Social which reads: principes
du droit politique. This concept of political law is of fundamental importance, and
today is often overlooked, especially given the prevailing influence of legal posi-
tivism. The positivization of law has left many jurists claiming that the term ‘law’
must be reserved solely for those commands issued by the sovereign law-making
body within a state, and which become binding on citizens owing to the threat of
a sanction. This position is most clearly associated with Hobbes, who argued that
‘dictates of reason, men used to call by the name of laws, but improperly: for they
are but conclusions, or theorems concerning what conduceth to the conservation
and defence of themselves’.⁶ Law in its true meaning ‘is the word of him, that by
right hath command over others’.⁷
While recognizing the clarity that is introduced into juristic analysis by legal
positivists who follow Hobbes, we are left with a puzzle concerning the office of
the sovereign law-maker. Hobbes avoids the juristic aspects of this conundrum by
arguing that in the founding compact individuals alienate their ‘natural rights’
and vest absolute authority in the sovereign power. But what if the compact estab-
lishing the authority of those occupying the office of government is conditional
or limited? Hobbes’ argument leaves such followers as Bentham and Austin argu-
ing that these restraints—which otherwise would be constitutional law—are not
laws strictly so-called, but fall into the category of ‘positive morality’.⁸
Can such a semantic claim enable us altogether to by-pass the juristic aspects
of this exercise? Can we avoid having to address the fact that the ruler must be
subject to law, since the law creates the office of the ruler? This is an issue that
has reverberated throughout European jurisprudence since the twelfth-century
revival of Roman law, as is illustrated in the work of Azo and Bartolus.⁹ It is
³ Ibid. ⁴ Ibid. ⁵ Ibid, 81.

⁶ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 111.
⁷ Ibid.
⁸ John Austin, The Province of Jurisprudence Determined [1832] Wilfred Rumble (ed)
(Cambridge: Cambridge University Press, 1996), Lecture V.
⁹ See Quentin Skinner, ‘Political Philosophy’ in Charles B Schmitt and Quentin Skinner (eds),
The Cambridge History of Renaissance Philosophy (Cambridge: Cambridge University Press, 1988),
389–452, 389–395.
110 The Science of Political Right: I
celebrated in English thought in the formulation of the thirteenth-century jurist
known as Bracton, who claimed that ‘although the king has no equal within
his realm’ he remains ‘under God and under the law, because the law makes the
king’.¹⁰ At its most basic, this argument recognizes that governors must be law-
bound for the simple reason that they claim not simply to possess the power to
rule (potentia), but that they possess the right of rule (potestas).
It is this right of rule—political right—that Rousseau examines. Before
turning to his analysis, it might be noted that Rousseau’s political thought was
influenced by and ‘issues out of his reflection on the juristic theories which were
authoritative in his age’.¹¹ These juristic theories were those of modern natural
law, as reflected in the work of Grotius and Pufendorf, as well as Althusius and
the French writers, Barbeyrac and Burlamaqui.¹² But although emerging from
this tradition, Rousseau makes a significant innovation and, to all intents and
purposes, rejects the concept of natural law.¹³ For Rousseau, the principles of
a just society derive from political reasoning, not from the precepts of natural
right. And only once natural law has been jettisoned is the space opened up for
the emergence of an autonomous conception of political right. Political right per-
forms a function analogous to that of modern natural right.
In this respect, Rousseau builds on and radicalizes the work of Pufendorf.
Pufendorf had detheologized natural law by removing it of any transcendental
moral claims. He argued that the precepts of natural law cannot be derived from
metaphysical ideas of justice and goodness but must be elaborated from an analy-
sis of human nature itself.¹⁴ However, while Pufendorf continued to call ‘natural
law’ those norms that evolve from the unfolding of the civil relationship, he also
maintained that ‘our natural sociability, our common needs and our common
humanity unite the whole of mankind, and instil the precepts of natural right in
each one of us’.¹⁵ As Gourevitch notes, Rousseau ‘denies the premise as well as
¹⁰ Henry de Bracton, De Legibus et Consuetudinibus Angliae (On the Laws and Customs of
England) [c1258] George E Woodbine (ed) Samuel E Thorne (trans) (Cambridge, MA: Belknap
Press, 1968), ii.33.
¹¹ Robert Derathé, Jean-Jacques Rousseau et la science politique de son temps (Paris: Librairie
Philosophique J Vrin, 1950), 51: ‘En réalité, la pensée politique de Rousseau est issue d’une réflexion sur
la théorie des jurisconsultes, qui, comme nous l’avons vu, fait autorité à son époch’.
¹² Ibid, 66–100. The last mentioned, who was not an innovator, wrote treatises on Principes du
droit naturel (1747) and Principes du droit politique (1751); translated into English as Jean-Jacques
Burlamaqui, Principles of Natural and Political Law T Nugent (trans) (London: J Nourse), 2 vols,
1748–1752). See Giorgio Del Vecchio, ‘Burlamaqui and Rousseau’ (1962) 23 Journal of the History
of Ideas 420–423.
¹³ Although Rousseau occasionally invokes the term ‘natural law’ this is used essentially as a
synonym for a shared sense of what is perceived to be just. Nevertheless, the role of natural law in
Rousseau’s thought remains a matter of contention: see Alfred Cobban, ‘New light on the political
thought of Rousseau’ (1951) 66 Political Science Quarterly 272–284, 277; cf Derathé, above n 11,
135, 168–171; Maurizio Viroli, Jean-Jacques Rousseau and the ‘Well-Ordered Society’ (Cambridge:
Cambridge University Press, 1988), 132–148.
¹⁴ See above ch 2, 79–81; Martin Loughlin, The Idea of Public Law (Oxford: Oxford University
Press, 2003), esp 138–145.
¹⁵ Victor Gourevitch, ‘Introduction to Rousseau’, Political Writings, above n 1, vol 2, xii.
the conclusion’.¹⁶ Only when shorn of the assumption that there can be a natural
tendency towards the formation of a ‘general society of mankind’,¹⁷ can it be said
that the immanent norms that Pufendorf calls natural laws are analogous to that
which Rousseau labels the principles of political right.
This innovation is connected to the fact that only in the eighteenth century
does the character of the modern state reveal itself. With the emancipation of
government from the restraints, both technological and ideational, that had pre-
viously kept it within strict bounds, an age opens up in which law is no longer
anchored either in the authority of custom (history: as the eternal past or as some
form of second nature that becomes confused with physical laws) or of time-
less, transcendent principles (reason: having a divine source and thus becoming
confused with universal moral laws). Rather, law comes to be understood as an
ordered system created by humans through social processes and designed to meet
their present, earthbound needs. Only at this stage can we acquire a more precise
understanding of law in a juridical sense: law as posited law. And only at this
moment can an absolute and autonomous sphere of the political be conceived.
The principle of sovereignty thus emerges simultaneously as an expression of the
capacity for self-rule and of the capacity to rule others.
In recognizing these developments, Rousseau leaves behind the world of nat-
ural law. Natural law can no longer be understood as a form of law operating
outside of human law (positive law in its broadest sense) and which acts as a con-
straint on, and evaluative yardstick over, this posited law. There can be no law
outside of the laws that humans give themselves.
With this acknowledgement, the distinction in medieval constitutionalism
between positive law (the law of the sovereign) and natural law (the precepts of
right conduct that are implanted in human reason by God) disappears. What
emerges in place of natural law is the species of political right, though this spe-
cies of political right (sc. public law) is rarely specified with precision in modern
thought. Political right (droit politique) comes to occupy the central ground that
natural law had previously colonized. An association of human beings is formed
that in the modern world is called ‘the state’. By ascribing the quality of sover-
eignty or legal omnicompetence to the state, this association comes to be treated
as being not only the sole source of law but also itself as a creature of law. And if
that formulation appears paradoxical it is, in part at least, because we are running
together two different conceptions of law: positive law and political right.
¹⁶ Ibid.
¹⁷ See Rousseau, Geneva Manuscript in his Political Writings, above n 1, vol 2, 153–162, 154
[1.2.4]: ‘The general society which our mutual needs might engender thus offers no effective help to
man become miserable, or rather it provides new forces only to the one who already has too many,
while the weak, lost, stifled, crushed in the multitude, finds no refuge to which he might flee, no
support in his weakness, and in the end he perishes a victim of this deceptive union from which he
expected his happiness’.
If the character of this modern species of political right is to be grasped we

are obliged to maintain the distinction between these two conceptions of law:
the law that commands (positive law, the civil laws), and that type of law, which
Rousseau calls droit politique, that establishes the right to rule. As Rousseau
was one of the first clearly to recognize, this world of ‘right ordering’ of the state
entails the creation of a world of our own devising. This idea of right ordering of
the state can otherwise be referred to as the constitution of sovereignty.
II. Rousseau’s Science of Political Right
‘I want to inquire whether in the civil order there can be some legitimate and
sure principle of government, taking men as they are, and laws as they can be.’¹⁸
In this opening sentence of The Social Contract Rousseau concisely formulates
the nature of the task he has set for himself. Rousseau’s ambitious objective is to
examine whether there can be discovered some science of political right—a sci-
ence of public law—that yields the principles that will make a governing order
legitimate. His aim is to elaborate an ideal which is able ‘to combine what right
permits with what interest prescribes’,¹⁹ so that justice and utility are never dis-
joined, that is, individual right is never sacrificed for the common good. Although
this appears to be a purely philosophical exercise, the final clause of the opening
sentence (‘taking men as they are and laws as they can be’) strikes an ambivalent
note. It highlights the scale of Rousseau’s ultimate objective: given the nature of
the human condition and given the practical nature of the tasks of law in human
society, can this ideal be made a reality?
This point of equivocation is important. If The Social Contract is purely an
ideal investigation into what ought to exist, or what can be imagined might exist,
then it is solely an exercise in political philosophy. And this is a rather different
undertaking to that of trying to specify the character of public law. The reason
is that although law possesses an ideal element, it is essentially a practical instru-
ment and must be set to work in actually existing societies. It is the last clause that
justifies the claim that Rousseau’s task is a juristic one: his objective is the practi-
cal one of specifying the character of droit politique—public law as it can actually
be realized in the modern state.
Rousseau takes as his starting point the observation that, although free in
their natural state, humans are now bound by the rules and practices of a hier-
archically organized order: ‘Man is born free, and everywhere he is in chains’.²⁰
The objective of The Social Contract is to explain how governmental ordering can
be reconciled with an individual’s claim to freedom. He rejects the analogy of
the family, in which the ruler is like the father and ‘the people are the image of
¹⁸ Rousseau, The Social Contract, above n 1, 41 (translation modified).

¹⁹ Ibid. ²⁰ Ibid, 41.
the children’; he similarly refutes the claim that governmental ordering is analo-
gous to that of the shepherd and his flock.²¹ Further, although Rousseau uses
the device of the political pact (what he calls the social contract) to circumvent
difficulties relating to the founding of government, he argues that in one crucial
respect both Grotius and Hobbes had misconstrued its character. By assuming
that ‘men are not naturally equal, but that some were born for slavery and others
for domination’, he suggests that Grotius and Hobbes ‘mistook the effect for the
cause’.²² By focusing on the history of government, they became seduced into
establishing ‘right by fact’.²³ ‘Any man born in slavery’, Rousseau comments, ‘is
born for slavery’ since ‘slaves lose everything in their chains, even the desire to
be rid of them’.²⁴ Consequently, although Grotius and Hobbes invoke the prin-
ciple of formal equality, they were too ready to draw from history the conviction
that ‘humankind belongs to a hundred men’ rather than recognizing that ‘those
hundred men belong to humankind’.²⁵
Although human history forms a chain of abuses and exploitation, Rousseau
claims that it need not be so. There will always be ‘a great difference between sub-
jugating a multitude and ruling a society’,²⁶ and a political pact that ‘stipulates
absolute authority on one side, and unlimited obedience on the other, is vain
and contradictory’.²⁷ In a properly conceived pact, humankind would not sim-
ply renounce their freedoms: they would exchange their natural freedom—their
independence—for a ‘higher’ political freedom. This is a trade of a freedom to
possess all one can grasp for a civil freedom which confers rights to possession.
It is a higher freedom because it is only in the civil state that humans can aspire
to self-mastery: ‘the impulsion of mere appetite is slavery’ and true freedom is
acquired only in ‘obedience to the law one has prescribed to oneself’.²⁸
Rousseau’s point is that Hobbes had erred in treating the political pact as an
exchange between being free and being governed. For Hobbes, the trade-off was
between liberty (as the absence of constraint) and law (as the rule of the sover-
eign), whereas Rousseau’s argument is that liberty entails self-government rather
than mere absence of constraint. Thus formulated, liberty does not stand opposed
to law since it is possible to reconcile liberty and law by establishing a state in
which people live under the laws that they themselves had made. By defining
liberty and law in this way, Hobbes had removed the question of state formation
from the sphere of juristic investigation: liberty stands outside the sphere of the
law. Rousseau’s conception of the relationship between liberty and law makes the
concept of political right the key to understanding governing order. But how can
political right achieve this reconciliation between freedom and government?
Like Hobbes’, Rousseau’s solution invokes the device of the political pact. And
like Hobbes’ pact, his solution requires the alienation of all of an individual’s
²¹ Ibid, 42–43: ‘As a shepherd is of a nature superior to his flocks, so too are the shepherds of
men, who are their chiefs, of a nature superior to their peoples’.
²² Ibid, 43. ²³ Ibid, 42. ²⁴ Ibid, 43. ²⁵ Ibid, 42. ²⁶ Ibid, 48.
²⁷ Ibid, 45–46. ²⁸ Ibid, 54.
natural rights. This must be so, explains Rousseau, for if certain rights were
reserved ‘there would be no common superior who might adjudicate between
them and the public’ and this being the case on some matters it would soon
become so on all, with the result that ‘the state of nature would subsist and the
association necessarily become tyrannical or empty’.²⁹ But unlike Hobbes,
Rousseau argues that the sovereign cannot be a single man or a representative
office: it must be the people themselves who, by this act of association, form ‘a
moral and collective body made up of as many members as the assembly has
voices, and which receives by this same act its unity, its common self, its life and
its will’.³⁰ The sovereign thus is the public person formed by the union of all and
this public person is generally called the republic or body politic, ‘which its mem-
bers call State when it is passive, Sovereign when it is active, Power when compar-
ing it to similar bodies’.³¹
How can the person created by this pact be said to have a single will? And
how can the associates of this pact and who subject themselves to the laws of
the sovereign be said to be free? Rousseau argues first that rather than destroy-
ing natural equality the political pact ‘substitutes a moral and legitimate equal-
ity for whatever physical inequality nature may have placed between men’.³²
Unequal in nature, individuals become political equals by virtue of the pact.
And as equals they are converted by the pact from a multitude into a people: the
associates ‘collectively assume the name people and individually call themselves
Citizens as participants in the sovereign authority, and Subjects as subjected to
the laws of the State’.³³
This political equality is the precondition for the formation of a single will.
Each associate acquires the same rights over the others as is granted over himself
and ‘each, by giving himself to all, gives himself to no one’.³⁴ This means that
‘each of us puts his person and his full power in common under the supreme
direction of the general will’.³⁵ This ‘general will’ is the will of the sovereign. But
since the sovereign ‘is formed entirely of the individuals who make it up’, it ‘has
not and cannot have any interests contrary to theirs’.³⁶ The general will ‘is not
so much the number of voices, as it is the common interest that unites them’.³⁷
Thus understood, the sovereign authority ‘has no need of a guarantor toward the
subjects, because it is impossible for the body to want to harm all of its members,
and . . . it cannot harm any one of them in particular’.³⁸ This last formulation pro-
vides the answer to the question of how the general will can be understood as an
expression of, rather than a restriction on, freedom.
²⁹ Ibid, 50. ³⁰ Ibid, 50 (emphasis in original). ³¹ Ibid, 51. ³² Ibid, 56.

³³ Ibid, 51. ³⁴ Ibid, 50. ³⁵ Ibid. ³⁶ Ibid, 52.
³⁷ Ibid, 62. See also at 60: ‘There is often a considerable difference between the will of all and
the general will: the latter looks only to the common interest, the former looks to the private inter-
est, and is nothing but a sum of particular wills; but if, from these same wills, one takes away the
pluses and the minuses which cancel each other out, what is left as the sum of the differences is the
general will’.
³⁸ Ibid, 52.
Rousseau explains that what is lost through the political pact is natural free-
dom, ‘an unlimited right to everything that tempts him and he can reach’, and
which freedom is thus conditioned by desire, chance, and the effects of force.³⁹
What is gained is civil freedom which, being conferred in the form of rights pro-
tected by the law, offers greater security, but which civil freedom ‘is limited by the
general will’.⁴⁰ For two main reasons, however, this is not strictly a restriction on
freedom. First, because although in the event of a conflict between an individual
interest and the common interest the latter must prevail, the common interest
works purely to reconcile ‘what right permits with what interest prescribes’,⁴¹ a
condition better understood as a limitation that operates to protect an equal lib-
erty for all, and therefore as an enabling condition. Secondly, with the transition
from a natural to a civil state, man’s conduct is governed not by instinct but by
justice. That is, there is a moral quality in the civil condition that previously was
lacking: only when ‘the voice of duty succeeds physical compulsion and right suc-
ceeds appetite, does man, who until then had looked only to himself, see himself
forced to act on other principles, and to consult his reason before listening to his
inclinations’.⁴² Man thus gains great qualities: ‘his faculties are exercised and
developed, his ideas enlarged, his sentiments ennobled, his entire soul is elevated’
and, under propitious circumstances at least, he is transformed from ‘a stupid and
bounded animal’ into ‘an intelligent being’.⁴³ For these reasons, ‘whoever refuses
to obey the general will shall be constrained to do so by the entire body: which
means nothing other than that he shall be forced to be free’.⁴⁴
These constituent elements of Rousseau’s science of political right are presented
in Book I of The Social Contract. In the civil state all people must be acknow-
ledged as equals and under such conditions all must work to promote the great-
est good of all.⁴⁵ This notion of ‘the greatest good of all’ is the product of two
interrelated principles: freedom and equality.⁴⁶ Only in the civil state can man
be elevated and realize true freedom, and such freedom cannot subsist without
political equality. But, as has been noted, Rousseau outlines these principles by
use of the device of the political pact. His notion is distinctive. He disagrees with
Locke’s argument that only a portion of an individual’s natural rights are con-
ceded to the state,⁴⁷ arguing by contrast that the establishment of the autonomy
of the res publica requires ‘the total alienation of each associate with all of his
³⁹ Ibid, 53–54. ⁴⁰ Ibid, 54. ⁴¹ Ibid, 41: see above 112.

⁴² Ibid, 53. ⁴³ Ibid. ⁴⁴ Ibid.
⁴⁵ Rousseau, The Geneva Manuscript, in his Political Writings, above n 1, vol 2, 153, 160: ‘The
only genuine fundamental law that flows immediately from the social pact, is that each man in
all things prefer the greatest good of all. Now, the specification, by various particular laws, of the
actions that contribute to this greatest good, constitutes right narrowly so called or positive right.
Everything that is seen to contribute to this greatest good, but the laws did not specify, constitutes
acts of civility, of beneficence, and the habit that inclines us to perform these acts even to our preju-
dice is what is called force or virtue’.
⁴⁶ Rousseau, The Social Contract, above n 1, 78.
⁴⁷ John Locke, Two Treatises of Government [1680] Peter Laslett (ed) (Cambridge: Cambridge
University Press, 1998), ii.§93.
rights to the whole community’.⁴⁸ And he disagrees with Hobbes since this total
alienation of natural rights, properly understood, involves not an alienation tout
court but an exchange of natural liberty for civil liberty. By adopting the device of
the political pact, Rousseau hopes to circumvent many of the problems entailed
in showing how the transition from an existing order to a just constitution can
actually be achieved. But by deploying this heuristic, his constituent principles
must remain ideal elements. To be recognized as precepts of political right, and as
the elaboration of the constitution of sovereignty, Rousseau must show how they
can be set to work in actually existing regimes.
Even if Rousseau manages to finesse the sociological problems of the founda-
tion, a major difficulty, inherent in the idea of the political pact, remains. If,
as argued, the establishment of civil order brings about an improvement in the
moral condition, how can humans in a state of nature ever come to realize that
their interests are best served by the institution of this order? Rousseau himself
directly and eloquently formulates this problem: ‘For a nascent people to be capa-
ble of appreciating sound maxims of politics and of following the fundamental
rules of reason of State, the effect would have to become the cause, the social
spirit which is to be the work of the institution would have to preside over the
institution itself, and men would have to be prior to the laws what they ought to
become by means of them’.⁴⁹ But what is the answer?
Rousseau’s solution is the remarkable office of the Lawgiver. Because
people at the founding are unable to understand what is required, ‘a superior
intelligence’ must be entrusted with the task of drawing up the basic laws of
the new constitution. The Lawgiver is acknowledged to be ‘in every respect an
extraordinary man’, and ‘while he must be so by his genius, he is no less so by
his office’.⁵⁰ He is expected to give a constitution, while occupying an office
that has no place in the constitution. He is expected to speak authoritatively
without relying on force or the art of reasoning. He is expected to design
institutions that can function without his continuous oversight. And he is
expected to draft a text that eschews partiality and trickery and instantiates
‘sublime reason’.⁵¹
Rousseau’s Lawgiver is a fiction that is required to enable him to explain the
moment of foundation without relying on force and violence.⁵² It intercedes to
resolve the paradox that the sovereign people must apparently be both parties to
the contract and the entity created by it.⁵³ It intercedes to resolve the paradox
that to be legitimate the constitution must express the will of the people, but to
be authoritative it must be handed down from above. Having worked through a
⁴⁸ Rousseau, The Social Contract, above n 1, 50. ⁴⁹ Ibid, 71. ⁵⁰ Ibid, 69.
⁵¹ Ibid, 71.
⁵² On Rousseau’s use of the device in a practical context, see his Considerations on the Government
of Poland [1772] in his Political Writings, above n 1, vol 2, 177–260, 180, 197–201.
⁵³ See Louis Althusser, ‘Rousseau: The Social Contract (the Discrepancies)’ in his Politics and
History: Montesquieu, Rousseau, Marx Ben Brewster (trans) (London: Verso, 2007), 113–160.
modern conception of autonomous political order as a product of the will of the
people and founded on the principles of equality and liberty, Rousseau is obliged
to invent the Lawgiver as a surrogate for a divine or transcendental source of
authority.⁵⁴ Rousseau’s Lawgiver thus appears only to trade one set of paradoxes
for another. The Lawgiver functions to conceal the fact that states actually have
their origins in might rather than right, that governing order precedes constitu-
tional order, that directing cannot be eliminated from the processes of deliberat-
ing, and that even if the sovereign people can later be said to come into existence
they are absent at the foundation.⁵⁵ Although these are major difficulties in the
construction of a science of political right, they are difficulties that must be faced
whenever modern constitutional frameworks made in the name of ‘the sovereign
people’ are established.⁵⁶
III. Sovereignty and Government in The Social Contract
In Book I of The Social Contract Rousseau sketches the basics of the science of
political right. Through the political pact, the body politic is brought into exist-
ence. The next task must be to give this entity its operative principles, and these
are elaborated in the following three books. The key to understanding the work-
ing of these principles lies in the distinction that Rousseau (following Bodin)
carefully makes between sovereignty and government.
Rousseau argues that ‘while the opposition of particular interests made the
establishment of societies necessary, it is the agreement of these same interests
which made it possible’ and it is ‘solely in terms of this common interest that soci-
ety ought to be governed’.⁵⁷ This common interest is the general will, and sover-
eignty ‘is nothing but the exercise of the general will’.⁵⁸ Sovereignty is thus both
inalienable and indivisible: while power can be transferred or divided, the general
will cannot, not least because otherwise it would no longer be general. Will, as
an act of sovereignty, makes law. Many fail to grasp this essential point, notes
Rousseau, and they try to divide the sovereign, turning it ‘into a being that is fan-
tastical and formed of disparate pieces’.⁵⁹ Sovereignty cannot be subject to divi-
sion and must remain free of any bonds of positive constitutional law. Rousseau
thus insists that sovereignty must be differentiated from government. While
⁵⁴ See Steven Johnston, Encountering Tragedy: Rousseau and the Project of Democratic Order
(Ithaca: Cornell University Press, 1999), 52: ‘Delicately Rousseau tries to carve out a place for the
Legislator in each of two worlds while obscuring his presence in both. Neither human nor divine,
the Legislator can thus be read as a textual device mediating the gulf between Heaven and Earth’.
⁵⁵ See Neil Saccomano, ‘Rhetoric, consensus, and the law in Rousseau’s Contrat social ’ (1992)
107 Modern Language Notes 730–751, 736–739.
⁵⁶ See, eg, Jacques Derrida, ‘Declarations of Independence’ (1986) 15 New Political Science 7–15;
Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca, NY: Cornell University
Press, 1993), ch 4.
⁵⁷ Rousseau, The Social Contract, above n 1, 57. ⁵⁸ Ibid, 57. ⁵⁹ Ibid, 58.
sovereignty expresses the legislative will, government is ‘established between sub-

jects and Sovereign so that they might conform to one another’ and is charged
with ‘the execution of the laws and the maintenance of freedom’.⁶⁰
The law-making power of the sovereign is absolute and inviolable. Although
this power embraces only that portion of an individual’s power, goods, and free-
dom as is necessary for the community to use, the judgment of what is necessary
can be exercised solely by the sovereign. The main constraint is simply that ‘every
genuine act of the general will, either obligates or favours all Citizens equally’.⁶¹
That is, the law must address its subjects as a general group and consider their
actions in the abstract. It ‘can create several Classes of Citizens, it can even specify
the qualifications that entitle to membership in these classes, but it cannot nomi-
nate this person or that for admission to them’ since ‘any function that relates to
an individual does not fall within the province of the legislative power’.⁶² Laws
are ‘nothing but the conditions of the civil association’, the people who are subject
to them are their author, any state ruled by laws is a republic, and ‘every legiti-
mate government is republican’.⁶³
The maintenance of the legislative power directly in the hands of the people is
designed to ensure that political power is not converted into legalized domina-
tion; the power involves the setting of general rules and is a power exercised by all
for the benefit of all. But this is only one of the two types of political power that
Rousseau identifies. Sovereignty—the exercise of the legislative power—must be
distinguished from government and government—the execution of the laws—
cannot belong to the generality of the people. If the sovereign possessed the exec-
utive power, says Rousseau, ‘right and fact would be so utterly confounded that
one could no longer tell what is law and what is not, and the body politic thus
denatured would soon fall prey to the violence against which it was instituted’.⁶⁴
The best form of government is not democracy, but an elective aristocracy in
which magistrates, on the basis of their probity, enlightenment, and experience,
are elected by the people.⁶⁵
In The Social Contract Rousseau is rather economical in his explanations of
the functions of government. It exists simply to administer the laws and to regu-
late individual conduct within the framework of those laws. But there are signs
that this is an extensive undertaking. He argues, for example, that the objective
of political association ‘is the preservation and prosperity of its members’ and
that a sure sign that government is fulfilling that aim is when the population is
both increasing and prospering.⁶⁶ Hence, he declaims: ‘Calculators, it is now up
to you: count, measure, compare’.⁶⁷ We must turn to his Discourse on Political
Economy for a more detailed explanation. Here Rousseau argues that ‘although
⁶⁰ Ibid, 83. ⁶¹ Ibid, 63. ⁶² Ibid, 67. ⁶³ Ibid, 68, 67.

⁶⁴ Ibid, 116; see also at 83.
⁶⁵ Ibid, 92–93: ‘If there were a people of Gods, they would govern themselves democratically.
So perfect a Government is not suited to men’.
⁶⁶ Ibid, 105. ⁶⁷ Ibid.
the government is not the master of the law, it is a considerable thing to be its
guarantor and to dispose of a thousand ways of making it beloved’.⁶⁸ Elaborating,
he identifies the essence of the art of government.
In Discourse on Political Economy Rousseau argues that administration accord-
ing to law requires attention to an infinite number of details of policy and econ-
omy. In this, magistrates must be guided by ‘the spirit of the law, which should
help decide cases it could not anticipate’ and the sense of justice inherent in the
general will.⁶⁹ To achieve this, one of the most important tasks of government
must be ‘to prevent extreme inequality of fortunes’ since ‘the greatest evil is
already done when there are poor people to defend and rich people to restrain’.⁷⁰
This suggests an extensive and powerful role for government, for which delicate
skills are required. ‘While it is good to know how to use men as they are’, he elab-
orates, ‘it is much better still to make them what one needs them to be’.⁷¹ One
must ‘form men if you want to command men’, especially since ‘the most absolute
authority is that which penetrates to man’s inmost being, and affects his will no
less than it does his actions’.⁷² Acknowledging the challenge of establishing and
maintaining the just republic, Rousseau claims that the task of government must
be to ensure that all particular wills take their bearing from the general will.
The achievement of the just republic thus necessitates the formation of a virtu-
ous governmental elite guided by the principles of liberty and equality implicit in
the general will. The task of government is to mould the people,⁷³ and to continue
the work initiated by the Lawgiver at the founding. This requires government to
use the full range of its powers, including the promotion of a ‘civil religion’ that
instils the virtues of patriotism.⁷⁴ But Rousseau is not optimistic. The distinc-
tion between government and sovereign establishes a tension which eventually
is likely to adulterate the constitution, and ‘since there is here no other corporate
will to resist the will of the Prince and so to balance it, it must sooner or later
come to pass that the Prince ends up suppressing the Sovereign and breaking the
Social treaty’.⁷⁵ Rousseau believed this to be an inevitability, and it is a process set
in train from the moment of birth of the republic.⁷⁶
⁶⁸ Rousseau, Discourse on Political Economy [1756] in his Political Writings, above n 1, vol 2,
3–38, 11.
⁶⁹ Ibid, 12: ‘one need only be just in order to be sure of following the general will’.
⁷⁰ Ibid, 19. See also Rousseau, The Social Contract, above n 1, 112, 113–114.
⁷¹ Rousseau, Discourse on Political Economy, above n 68, 13.
⁷² Ibid, 13.
⁷³ Ibid, 15: ‘It is not enough to tell the citizens to be good; they have to be taught to be so’.
⁷⁴ Ibid, 16–17; Rousseau, The Social Contract, above n 1, 142–151, esp 146: ‘Of all Christian
Authors the philosopher Hobbes is the only one who clearly saw the evil and the remedy, who dared
to propose reuniting the two heads of the eagle, and to return everything to political unity, without
which no State or Government will ever be well constituted’. Cf ch 2, 76–77.
⁷⁵ Rousseau, The Social Contract, above n 1, 106.
⁷⁶ Ibid: ‘This is the inherent and inevitable vice which relentlessly tends to destroy the body
politic from the moment of its birth, just as old age and death destroy a man’s body’.
IV. Modernity and German Idealism: Kant’s Rechtslehre
Notwithstanding its pessimistic conclusion, The Social Contract is considered to

be Rousseau’s most idealistic work. But this assessment is reached by focusing
primarily on his deployment in Book I of the idea of the social contract. And
although Rousseau does grapple with the tensions between reason and history in
the formulation of the idea, subsequent commentators have commonly treated
the social contract as a theoretical construction rather than an exercise in histor-
ical reconstruction. This is not inaccurate, since Rousseau certainly invoked the
idea of the social contract as a way of offering an answer to a normative problem.
To the question, ‘how can government be justified?’, Rousseau provides the solu-
tion: the general will. The general will reconciles will and reason, unites power
and liberty, and presents itself as the key to the science of political right.
Through his use of the concept of the general will Rousseau leaves behind the
old world of the natural law jurists. Law is not to be found in the guiding precepts
of nature: it is a construction of human reason. But although separating the legal
and the natural and although acknowledging the positive and conventional char-
acter of law, Rousseau refused to divorce ethics and politics. Rather than treating
law as a purely empirical phenomenon that expresses an aggregation of interests
in society, he argued that the normative standard of law, understood as a general
code of conduct, is supplied by human reason. Law—the general will—is the will
that society would express were it free from the distortion of sectional interest
and individuals were enlightened as to their own best interest.
Rousseau’s ideas exerted a powerful influence over those who shaped the
course of the French Revolution,⁷⁷ which overthrew an antiquated regime of
royal authority and aristocratic privilege in favour of a system based on polit-
ical equality and representative government exercised through a modern consti-
tutional framework. As the single most decisive event heralding the arrival of
modernity, the Revolution sparked intense discussion across Europe. Rousseau’s
ideas were thus destined to become bound up with the ideals and achievements
of those extraordinary events, and it is in this light that Rousseau came to exert a
singular influence over subsequent generations of philosophers.
Nowhere was the intellectual impact of the French Revolution more acutely
felt than in the Germany of the Holy Roman Empire. Many in Germany—at
that time an eccentric patchwork of over 300 political units (kingdoms, prince-
bishoprics, duchies, free cities, and such like) structured largely according to
feudal privilege and servitude—treated the French Revolution as signalling a
⁷⁷ See JL Talmon, The Origins of Totalitarian Democracy (London: Secker & Warburg, 1952);
Joan McDonald, Rousseau and the French Revolution, 1762–1791 (London: Athlone Press, 1965);
Norman Hampson, Will and Circumstance: Montesquieu, Rousseau and the French Revolution
(London: Duckworth, 1983); François Furet, ‘Rousseau and the French Revolution’ in Clifford
Orwin and Nathan Tarcov (eds), The Legacy of Rousseau (Chicago: University of Chicago Press,
1996), 168–182.
IV. Modernity and German Idealism 121
decisive break with ancient feudal rule. The establishment of the French republic,
instituted on the basis of rational political principles, marked a critical stage in
the progress of reason. The Revolution motivated many German philosophers to
elaborate the idea of the state as a sphere in which the passions could be silenced
by the reason of the law. Foremost amongst this group was Immanuel Kant.
Although not appropriating Rousseau’s language, Kant was deeply influenced
by Rousseau’s theory of state-building; it has even been claimed that the ‘political
theory of Kant is . . . inconceivable without Rousseau’.⁷⁸ And the fact that virtu-
ally all of his political writings were published after the French Revolution pro-
vides some indication of the extent to which the Revolution was a decisive factor
in the development, if not formulation, of his ideas. Notwithstanding the ‘misery
and atrocities’ that flowed from it, Kant believed that the French Revolution ‘can-
not have been caused by anything other than a moral disposition in the human
race’.⁷⁹ For Kant, the Revolution’s true significance lay in the manner in which it
revealed the human imperative to be subject to a form of government operating
in accordance with the principles of political right.
While taking its cue from Rousseau’s conception of the social contract, Kant
deviated from it in one fundamental respect: Kant altogether denied the histori-
cal character of the social contract, treating it purely as an ‘idea of reason’.⁸⁰ Kant
here used ‘idea’ in a strict sense, such that the social contract should be treated
as ‘a Platonic ideal (respublica noumenon) which is not an empty figment of the
imagination, but an eternal norm for all civil constitutions whatever’.⁸¹ Through
this idealization, Kant treated the state purely as a postulate of reason, and he
thus left behind any sense of the state as an entity formed by the processes of
drawing together the national forces of a people.
Whatever its technical advance as moral theory, this rationalist and formalist
reading of the political pact renders Kant’s political theory of ambiguous utility
⁷⁸ Reinhold Aris, History of Political Thought in Germany, 1789–1815 (London: Allen &
Unwin, 1936), 70. See also Ernst Cassirer, Rousseau, Kant and Goethe: Two Essays James Gutman,
Paul Oskar Kristeller, and John Herman Randall Jr (trans) (Princeton, NJ: Princeton University
Press, 1945), 1–18; Geoff rey Hawthorn, Enlightenment and Despair: A History of Social Theory
(Cambridge: Cambridge University Press, 2nd edn, 1987), 32: ‘Kant was the one contemporary
who took Rousseau absolutely seriously’. Elaborating, Hawthorn explains that Kant maintained
that ‘in morality as in the making of concepts, man is independent of God and of nature’ and that
this ‘simple point, “the great discovery of our age”, he attributed to Rousseau’ (ibid, 34).
⁷⁹ Immanuel Kant, ‘The Contest of Faculties’ [1798] in his Political Writings Hans Reiss (ed)
HB Nisbet (trans) (Cambridge: Cambridge University Press, 2nd edn, 1991), 176–190, 182.
⁸⁰ Immanuel Kant, ‘On the common saying: “Th is may be true in theory, but it does not apply
in practice” ’ (1792) [Theory and Practice] in his Political Writings, above n 79, 61–92, 79: ‘Th is . . . is
an original contract by means of which a civil and thus completely lawful constitution and com-
monwealth can alone be established. But we need by no means assume that this contract . . . actually
exists as a fact, for it cannot possibly be so. . . . It is in fact merely an idea of reason, which nonethe-
less has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way
that they could have been produced by the united will of a whole nation, and to regard each subject,
in so far as he can claim citizenship, as if he had consented within the general will. This is the test of
the rightfulness of every public law’.
⁸¹ Kant, above n 79, 187.
as political jurisprudence. The principal difficulty is that Kant formulates his

political theory essentially as a sub-branch of his moral theory. In his pioneer-
ing work on ethics, Kant had sought to render explicit certain a priori principles
of reason that ought to govern human conduct, and then to formulate these as
universal moral laws. These principles, elaborated in various versions of the fun-
damental ethical principle of the categorical imperative, require us to act on the
basis of maxims that can be universalized in such a way as not to infringe the
dignity of other individuals as ends in themselves.⁸² This is the fundamental law
and ‘consciousness of this fundamental law’ is what Kant calls a ‘fact of reason’.⁸³
But this fundamental moral law is, it appears, then transformed into a political
precept simply by virtue of the fact that, for Kant, politics must be made into an
instrument of morality.⁸⁴ Notwithstanding our experience of the contemporary
realities of politics, Kant contends that we must ‘assume that the pure princi-
ples of right have an objective reality’.⁸⁵ These rights, he asserts, ‘must be held
sacred, however great a sacrifice the ruling power may have to make’.⁸⁶ All politi-
cal action ‘must bend the knee before right’.⁸⁷
For Kant, laws are therefore not to be evaluated on the basis that they pro-
mote happiness; this Aristotelian notion would introduce empirical elements
into the assessment and that would make Kant’s theory heteronomous. Laws
are to be measured solely on whether they are consistent with ethical right.
Th is latter conception generates a principle of duty,⁸⁸ and this makes his theory
autonomous. Kant argues that the search for happiness leads merely to struggle
and conflict. Only a science independent of experience can identify the relevant
principles of fairness and justice. Only obedience to objective right can lead
to peace.
Many have claimed that Kant’s interpretation adds rigour to Rousseau’s con-
ception of the social contract.⁸⁹ Whatever the contribution Kant may be making
⁸² For Kant’s various formulations of the categorical imperative, see Reiss, ‘Introduction’ to
Kant’s Political Writings, above n 79, 1–40, 18–21; John Ladd ‘Introduction’ to Immanuel Kant,
Metaphysical Elements of Justice [1797] (Part I of the Metaphysics of Morals; known as the Rechtslehre)
John Ladd (trans) (Indianapolis: Hackett, 1999), xv–lviii, xvi.
⁸³ Immanuel Kant, Critique of Practical Reason [1788] Lewis White Beck (trans) (Indianapolis:
Bobbs-Merrill Company, 1956), 31; cited in Terry Pinkard, German Philosophy, 1760–1860: The
Legacy of Idealism (Cambridge: Cambridge University Press, 2002), 59.
⁸⁴ Kant, ‘Perpetual Peace: A Philosophical Sketch’ (1795) in his Political Writings, above n 79,
93–130, 116 et seq: ‘there can be no conflict between politics, as an applied branch of right, and
morality, as a theoretical branch of right (i.e. between theory and practice)’.
⁸⁵ Ibid, 125. ⁸⁶ Ibid. ⁸⁷ Ibid.
⁸⁸ See Otfried Höffe, Kant’s Cosmopolitan Theory of Law and Peace Alexandra Newton (trans)
(Cambridge: Cambridge University Press, 2006), 86: ‘Kant’s distinction between morality and
legality does not separate two mutually exclusive ethical stances. Morality does not compete with
legality but instead has more strict demands. An action from duty is first an action in conform-
ity with duty and second makes the fulfi lment of this duty a determining ground for the action.
Morality is not a rival of legality but instead radicalizes and surpasses legality; mere legality is for
Kant no more than a contrastive concept that highlights the essence of actual morals or morality’.
⁸⁹ See, eg, Andrew Levine, The Politics of Autonomy: A Kantian Reading of Rousseau’s Social
Contract (Amherst: University of Massachusetts Press, 1976).
to legal philosophy, however, it is doubtful that it marks an advance in political
jurisprudence. The difficulties had indeed already been addressed by Rousseau
himself. In The Geneva Manuscript, for example, Rousseau notes that, while it ‘is
a beautiful and sublime precept to do unto others as we wish to be done unto’, this
precept cannot serve as the foundation of political justice, for the obvious reason
that that principle is itself in need of foundation.⁹⁰ What, Rousseau asks, is the
reason for me behaving as if I were someone else? The real problem, he suggests, is
not that of explaining what justice requires: it consists in ‘showing me what inter-
est I have in being just’.⁹¹ It is precisely because Kant converts the concept of the
political pact into a purely rational device that his theory fails to do much work as
political jurisprudence. By bracketing the socio-political issues and deriving a sci-
ence of political right by explication of his theory of the autonomy of the free and
rational being, Kant leaves too many practical questions unexamined.
It might thus be doubted whether, in a strict sense, Kant maintained a polit-
ical theory. This would, however, be too rash a conclusion. Since Kant acknow-
ledged that a system of state ordering exists precisely because the universal rule
of morality has not yet been attained, he must recognize a distinction between
the legal ordering of states and morality, and he did in fact develop an argument
for ensuring that legal ordering be brought into alignment with the demands
of morality. Kant’s argument on this question is best illustrated by examining
his account of the relationship between individual autonomy and governmental
authority. At the core of this account rests an enigma: despite extolling indi-
vidual autonomy as the fundamental moral good, and despite being drawn to
political questions by the progressive achievements of the American and French
Revolutions,⁹² Kant categorically rejects the notion that an individual possesses
a right of rebellion against the established authority. Insight into the character
of his political theory can thus be acquired by appreciating how he explains and
defends this position.
Our starting point is the conception of historical development that Kant elabo-
rates in his essay, Idea for a Universal History with a Cosmopolitan Purpose. Arguing
⁹⁰ Rousseau, The Geneva Manuscript in his Political Writings, above n 1, vol 2, 153–161, 160–
161. This manuscript formed the first draft of The Social Contract.
⁹¹ Ibid, 157. The difficulty has been referred to as the ‘Kantian paradox’. See Pinkard, above
n 83, 59–60: ‘The paradox arises from Kant’s demand that, if we are to impose a principle (a
maxim, the moral law) on ourselves, then presumably we must have a reason to do so; but, if there
was an antecedent reason to adopt that principle, then that reason would not itself be self-imposed;
yet for it to be binding on us, it had to be (or at least had to be “regarded” to be, as Kant ambigu-
ously stated) self-imposed. . . . The Kantian answer to the question—“what interest might we have
in being moral agents”—thus came down to the claim: there is and can be no interest, strictly con-
ceived, in being moral agents. We simply are moral agents by virtue of being the kinds of rational
creatures we are, and we simply do experience the call of moral duty on ourselves by virtue of being
such agents’.
⁹² See Ferenc Fehér, ‘Practical Reason in the Revolution: Kant’s Dialogue with the French
Revolution’ in Fehér (ed), The French Revolution and the Birth of Modernity (Berkeley: University of
California Press, 1990), 201–214.
from the propositions that all creatures are designed by nature to develop in con-
formity to their purpose and that nature has willed that man should realize that
purpose through his own reason, he argues that the highest task nature has set for
mankind must be that of establishing a society in which freedom is maximized.
He does not underestimate the difficulties: being an animal equipped with both
instinct and reason, man ‘abuses his freedom in relation to others of his own
kind’ since, although ‘he desires a law to impose limits on the freedom of all, he
is still misled by his self-seeking animal inclinations into exempting himself from
the law where he can’.⁹³ Consequently, man ‘requires a master to break his self-
will and force him to obey a universally valid will under which everyone can be
free’.⁹⁴ But such a master can come from nowhere but in the human species and
‘this master will also be an animal who needs a master’. The greatest problem we
face, then, is that of needing a master to provide justice, while recognizing that
this master inevitably must be a man. Kant does not retreat to Rousseau’s figure
of the Lawgiver. Conceding that a perfect solution is impossible, he claims that
‘nothing straight can be constructed from such warped wood as that which man
is made of’.⁹⁵ We are required to work towards the realization of freedom in these
unpropitious circumstances.
Acknowledging these difficulties, Kant argues first that the establishment of
governmental order must in itself be recognized as a step on the way to realizing
freedom.⁹⁶ For this purpose, he draws a distinction between two aspects to free-
dom: a negative aspect, in which a person is free if her actions are not determined
by sensual desires, and a positive aspect, whereby a person is free if her actions are
determined by the categorical imperative.⁹⁷ He contends that simply by virtue of
the fact that they regulate action, the laws of the state are able to promote negative
freedom. The establishment of law-governed order is in itself a moral achieve-
ment because, ‘by putting an end to outbreaks of lawless proclivities’, this order
‘genuinely makes it much easier for the moral capacities of men to develop into
an immediate respect for right’.⁹⁸ Even if government only partly protects the
concept of right, a ‘great step is taken towards morality (although this is still not
the same as a moral step), towards a state where the concept of duty is recognised
for its own sake’.⁹⁹ Since it is only through law that freedom can be realized, it
becomes our duty to respect the law.
Kant thus argues that we are under a duty to respect the law and to work
towards the realization of the political conditions in which the constitution of
⁹³ Kant, ‘Idea for a Universal History with a Cosmopolitan Purpose’ (1784) in his Political
Writings, above n 79, 41–53, 46.
⁹⁴ Ibid. ⁹⁵ Ibid.
⁹⁶ On his characterization of the movement from the natural to the civil state, Kant thus devi-
ates from the argument of Rousseau. These differences are thrown into greater relief when we con-
sider Rousseau’s Second Discourse in ch 5 below.
⁹⁷ See Lewis Beck White, A Commentary on Kant’s Critique of Practical Reason (Chicago:
University of Chicago Press, 1960), 122–123.
⁹⁸ Kant, above n 84, 121n. ⁹⁹ Ibid.
government moves towards greater compliance with the principles of political
right. This is so because ‘the spirit of the original contract (anima pacti originarii)
contains an obligation on the part of the constitutive power to make the mode of
government conform to the original idea’.¹⁰⁰ This impels us ‘to alter the mode of
government by a gradual and continuous process . . . until it accords in its eff ects
with the only rightful constitution’.¹⁰¹ This rightful constitution is ‘a pure repub-
lic’, a state of free and equal citizens bound by a common set of laws.¹⁰²
Since Kant’s main objective is to specify the principles of political right, he does
little to explain how practically this republican constitution can be achieved. He
is, however, clear on one thing: there can be no place in his scheme for a right of
rebellion against the established authority.¹⁰³ Any claim to a right of rebellion
would strike a blow at the existence of the legal order that alone can guarantee
such a right; the right to resistance, he argues, is ‘liable to nullify the entire legal
constitution’ and before it could be permitted ‘there would have to be a public
law which permitted the people to offer resistance: in other words, the supreme
legislation would have to contain a provision to the effect that it is not supreme,
so that in one and the same judgment, the people as subjects would be made sov-
ereign over the individual to whom they are subject’.¹⁰⁴ And this, Kant notes, is
patently self-contradictory.
It is tempting to try and circumvent this argument of self-contradiction by
drawing a distinction between positive law and political right, such that the right
might be contrary to the established law but still in accordance with the claim
of political right. But Kant is unequivocal: his position is founded on practical
principles of reason. ‘All resistance against the supreme legislative power’, he con-
tends, ‘is the greatest and most punishable crime in the commonwealth, for it
destroys its very foundations’.¹⁰⁵ This prohibition is absolute: ‘even if the power
of the state or its agent, the head of state, has violated the original contract by
authorising the government to act tyrannically, and has thereby, in the eyes of
the subject, forfeited the right to legislate, the subject is still not entitled to offer
counter-resistance’.¹⁰⁶ Here we see an important consequence of Kant’s charac-
terization of the original contract as an idea: were it a historical fact the ‘people’
might have a claim, but since for Kant it is merely a useful fiction that enables
us to recognize the type of constitution that ought to be established it becomes
incapable of grounding a right of rebellion. For Kant, it is not so much that the
sovereign owes no duties, or that the subject possesses no rights, but that the sole
¹⁰⁰ Kant, ‘The Metaphysics of Morals’ (1797) in his Political Writings, above n 79, 131–175,
163; Kant, Rechtslehre, above n 82, 148–149.
¹⁰¹ Ibid. ¹⁰² Kant, above n 84, 99–100.
¹⁰³ See HS Reiss, ‘Kant on the Right of Rebellion’ (1956) 17 Journal of the History of Ideas 179–
192; Lewis White Beck, ‘Kant and the Right of Revolution’ (1971) 32 Journal of the History of
Ideas 411–422; Peter Nicholson, ‘Kant on the Duty Never to Resist the Sovereign’ (1976) 86 Ethics
214–230.
¹⁰⁴ Kant, ‘Metaphysics of Morals, above n 100, 145; Kant, Rechtslehre, above n 82, 125–126.
¹⁰⁵ Kant, above n 80, 81. ¹⁰⁶ Ibid.
authority in the commonwealth to determine those duties and rights rests with
‘whoever controls the ultimate enforcement of the public law’.¹⁰⁷
Kant argues that humans are under a duty to promote maximum freedom for
all and ultimately to promote universal peace. This is achieved first by the forma-
tion of governmental order, then by the promotion of a republican constitution,
and later by creating a federation of free states. Although in furtherance of these
purposes the people must be prepared to advocate reform, the law must at all
times be obeyed. While morality requires that a person act from a sense of duty,
law requires only that the person act according to duty.¹⁰⁸
Faced with the intricate problem of how to reconcile autonomy of the will (the
condition of freedom) with the form of coercion that is an indispensable charac-
teristic of the law (the condition of authority), Kant seeks a solution in a theory of
progress.¹⁰⁹ Man is in the process of becoming enlightened, and for this process
to sustain itself all that is needed is ‘freedom to make public use of one’s reason in
all matters’.¹¹⁰ Although such enlightenment can only be achieved slowly—revo-
lutions designed to end autocratic despotism tending only to generate ‘new preju-
dices’ to ‘guide the great unthinking mass’—Kant believed that the ‘obstacles to
universal enlightenment, to man’s emergence from his self-incurred immaturity,
are gradually becoming fewer’.¹¹¹ He thus expressed optimism about the steps by
which states may establish republican constitutions and then respect the rights of
nations through the emergence of a federation of peoples and acknowledgement
of cosmopolitan right.¹¹² This process, he claims, ‘is guaranteed by no less an
authority than the great artist Nature herself’.¹¹³
In Perpetual Peace, Kant explains how there exists a mechanism in nature
that ‘visibly exhibits the purposive plan of producing concord among men, even
against their will and indeed by means of their very discord’. This is the working
of providence. But how, Kant asks, ‘does nature guarantee that what man ought
to do by the laws of his freedom (but does not do) will in fact be done through
nature’s compulsion, without prejudice to the free agency of man?’¹¹⁴ The answer
is by designing a constitution that ensures that, even though men may harbour
evil intent in private, they will be impelled to act in public as though their inten-
tions were good.¹¹⁵ This development—the establishment of a common frame-
work of laws equally respecting individual right—may not be inevitable. But,
¹⁰⁷ Ibid, 82. See also ‘Metaphysics of Morals’, above n 100, 143: ‘the sovereign of a state has only
rights in relation to the subject, and no (coercive) duties. Furthermore, if the organ of the sovereign,
the ruler, does anything against the law (e.g. if he infringes the law of equal distribution of political
budens in taxation, recruiting, or the like), the subject may lodge complaints (gravamina) about this
injustice, but he may not offer resistance’; Kant, Rechtslehre, above n 82, 124.
¹⁰⁸ See Kant, Rechtslehre, above n 82, 22–23. ¹⁰⁹ Höffe, above n 88, ch 9, 159–176.
¹¹⁰ Kant, ‘An Answer to the Question: “What is Enlightenment?” ’ [1784] in his Political
Writings, above n 79, 54, 55.
¹¹¹ Ibid, 55, 58. ¹¹² Kant, above n 84, 98–108. ¹¹³ Ibid, 108.
¹¹⁴ Ibid, 112.
¹¹⁵ For this reason, Kant argues that ‘the problem of setting up a state can be solved even by a
nation of devils’: ibid.
says Kant, history can be understood only if this development is postulated. We
are obliged to act as if this were true.
V. The Formal Science of Political Right
The radical character of Kant’s philosophy is expressed in the clear distinction that
he drew between the material (empirical or phenomenal) and mental (a priori or
noumenal) worlds. The objective running throughout his philosophical writings
is to establish the validity and coherence of these distinct worlds. This reaches
its zenith with his works, Critique of Pure Reason (1781) and Critique of Practical
Reason (1788), which brought about what he himself called ‘the Copernican revo-
lution in philosophy’.¹¹⁶ But because Kant was mainly concerned to specify the
concepts and principles that define a particular subject (science, morals, aesthetics,
etc), he had little interest in political questions, located within specific time and
space. Initially at least, his political thought fitted comfortably within the spirit
of the ‘enlightened absolutism’ of his age. Only with the French Revolution could
his ideas about autonomy in the phenomenal world become more closely attuned
to the practical claims of political liberty. It might even be argued, as did Heine,
that that Revolution presented itself as a mirror image in the material world of
the revolution that Kant had already effected in the intellectual world.¹¹⁷ ‘Never
since the sun had stood in the firmament and the planets revolved around him’,
noted Hegel, ‘had it been perceived that man’s existence centres in his head, i.e.,
in thought, inspired by which he builds up the world of reality’.¹¹⁸ As Marx was
later to say—and it was not intended as a compliment—Kant’s Rechtsphilosophie
was ‘the German theory of the French Revolution’.¹¹⁹
In his more explicitly political writings Kant was deeply influenced by
Rousseau.¹²⁰ There are, however, fundamental differences. While Rousseau
¹¹⁶ See Reiss, above n 82, 17.

¹¹⁷ Heinrich Heine, ‘Zur Geschichte der Religion und Philosophie in Deutschland’ in his
Sämtliche Schriften (Munich: Hanser, 1971), vol 3, 505–642, 590: ‘Mit diesem Buche [Kritik der
reinen Vernunft] beginnt eine geistige Revolution in Deutschland, die mit der materiellen Revolution
in Frankreich die sonderbarsten Analogien bietet, und dem tieferen Denker eben so wichtig dünken
muß wie jene. . . . Auf beiden Seiten des Rheines sehen wir denselben Bruch mit der Vergangenheit, der
Tradition wird alle Ehrfurcht aufgekündigt’ (‘With this book [Critique of Pure Reason] an intellec-
tual revolution began in Germany which offers the strangest analogies with the material revolution
in France, and, to a more reflective mind, appears of equal importance. . . . On both banks of the
Rhine we see the same break with the past, all respect for tradition is revoked’).
¹¹⁸ GWF Hegel, The Philosophy of History J Sibree (trans) (New York: Dover, 1956), 447.
¹¹⁹ Karl Marx, ‘Das philosophische Manifest der historischen Rechtsschule’ [1842] in Marx-
Engels Werke (Berlin: Dietz, 1981), vol 1,78–85, 80: ‘Ist daher Kants Philosophie mit Recht als die
deutsche Theorie der französischen Revolution zu betrachten, so Hugos Naturrecht also die deutsche
Theorie des französischen ancient regime’. Marx here was taking his cue from Heine, who referred
playfully to Kant as ‘unser Robespierre’: Heine, above n 117, vol 2, 655.
¹²⁰ See Kant, ‘Remarks in the Observations on the Feeling of the Beautiful and the Sublime’,
cited in Ladd, above n 82, xxiii–xxiv: ‘I am by inclination a seeker after truth . . . There was a time
retained a degree of scepticism about the power of human reason, Kant was thor-
oughly rationalist in outlook. This especially shines through in his conception
of history, where Kant believed in a historical process which under the guid-
ance of reason could, it seemed, lead to human perfectibility. This rationalism is
also to be seen in Kant’s tendency to treat political freedom rather abstractly as
a question to be addressed by universal mankind, and this is a conception that
varies significantly from Rousseau’s territorially bound republican patriotism.
The cosmopolitan order based on international law that forms a centrepiece of
Kant’s science of political right is treated by Rousseau as simple fantasy.¹²¹ Kant’s
remains a formal analysis in which, as a consequence, the complexities of material
political struggles at the level of historic communities are entirely marginalized.
Consequently, although Kant’s formalism does contain a powerful egalitarian
dimension,¹²² it also manages to obscure Rousseau’s much more grounded, and
therefore more radical, egalitarianism which condemned ‘all familiar politics as
enslavement’.¹²³
At the root of these differences between Kant’s rationalism and Rousseau’s
political thought lies the rigorous distinction that Kant draws between the
material world of ‘is’ and the moral world of ‘ought’. Once the independence of
the moral world from the world of experience is established, Kant’s work tends to
assume the authority of the moral world over the political. Kant’s ‘inherent need
of reason for unity is such’, argues Krieger, ‘that it rises pyramid-fashion above
the manifold of sense-impressions until in its higher reaches it borrows from what
is later to be the moral world the hypothetical ideas according to which the world
of experience can be ordered and known’.¹²⁴ These are Kant’s ‘regulative princi-
ples of reason’, which incorporate ‘the transcendental ideas of reason’, and which
provide reason with an intrinsic moral standard that gives objective reality to the
moral world.
The overarching authority of this moral world acts as the driver of Kant’s polit-
ical arguments. Having first formulated the principles of morality as belonging
to an autonomous realm divorced from experience, he then seeks to make free-
dom the overarching principle of the experiential world of politics: the moral
law requires acknowledgement of the equal and mutual freedom of all. This is
addressed in Theory and Practice, in which he argued that constitutional princi-
ples could not be drawn from experience, such as the search for happiness, but
only be derived from ‘pure rational principles of external human right’, that is,
when I believed that this alone brought honour to humanity and I despised the common people
who know nothing. Rousseau set me right. The deceptive feeling of superiority vanished. I learned
to respect ordinary people’.
¹²¹ Viroli, above n 13, 211–229.
¹²² For an explanation of Kant’s egalitarianism, see Höffe, above n 88, esp 1–17.
¹²³ Stephen Ellenburg, ‘Rousseau and Kant: Principles of Political Right’ in RA Leigh (ed),
Rousseau after Two Hundred Years (Cambridge: Cambridge University Press, 1982), 3–22, 4.
¹²⁴ Leonard Krieger, The German Idea of Freedom: History of a Political Tradition from the
Reformation to 1871 (Chicago: University of Chicago Press, 1957), 95–96.
the a priori principles of freedom, equality, and independence.¹²⁵ Kant therefore
sought to erect ‘a constitutional structure whose independence was patterned
on a moral analogy but whose reference was solely to the world of experience’;
he thus showed, that ‘an a priori legislating reason embodying principles of lib-
erty was compatible with the order established by the natural laws of political
experience’.¹²⁶ But the ultimate triumph of the moral law becomes explicit only
in Perpetual Peace, in which Kant argues that ‘there is no conflict whatsoever
between morality and politics’ and that a ‘true system of politics cannot take
a single step without first paying tribute to morality’.¹²⁷ The civic constitution
that promotes this, Kant claims, is a Rechtsstaat operating in accordance with the
separation of legislative, executive, and judicial power.¹²⁸ But if one asks ‘what
links the world of morality to the world of nature?’, the only answer Kant is able
to offer is that of ‘providence’.
As a claim in political jurisprudence, this argument falls prey to Hegel’s criti-
cisms about the ‘impotence of the ought’.¹²⁹ Kant appropriates from Rousseau
the general idea of ‘man’s capacity for moral self-direction (what Kant was to call
autonomy), upon man’s independence of God, of society and of nature, his ability
to act rather than be acted upon, his intrinsic quality as a supremely free agent
who, when rid of dependence and oppression is clearly able to see by virtue of his
reason where his moral duty lies’.¹³⁰ By explaining that our duty requires compli-
ance with the rational law (the categorical imperative) that we establish for our-
selves, Kant provides a more exact formulation of political right. But its weakness
as political jurisprudence is a direct consequence of its intellectual rigour: that is,
the precision of this rational law is acquired only by virtue of its abstraction from
the material concerns of particular societies. Kant’s conceptual solution to the
search for a science of political right is achieved only at a cost of its socio-political
relevance.
This is not a purely intellectual point. Rousseau accepted, rhetorically at least,
that all justice ultimately comes from God. But he also pointed out that ‘if we
were capable of receiving it from so high, we would need neither government nor
laws’, and indeed that the claims of reason ‘only bring good to the wicked and evil
to the just’ since the latter observe the dictates of reason while the former ignore
them.¹³¹ By making freedom its own authority, Kant promoted a ‘rational indi-
vidualism which forced him to deny all corporate, national, or organic mediation
between the collectivity of free persons and the monarch’.¹³² This Kantian intel-
lectual revolution provided his followers with no method by which to proceed
¹²⁵ Kant, above n 80, 73–74. ¹²⁶ Krieger, above n 124, 115.
¹²⁷ Kant, above n 84, 124–125.
¹²⁸ Kant, ‘Metaphysics of Morals’, above n 100, 138–143; Kant, Rechtslehre, above n 82,
118–123.
¹²⁹ Hegel, cited in Höffe, above n 88, 1. ¹³⁰ Hawthorn, above n 78, 34.
¹³¹ Rousseau, Social Contract in his Political Writings, above n 1, vol 2, 66.
¹³² Krieger, above n 124, 124.
from the ‘enlightened absolutism which he accepted to the balanced constitu-

tion which he desired’.¹³³ All that remained, Krieger argues, was ‘his counsel
to accept, after they had succeeded, the revolutions which one must oppose
in their origins and their course’.¹³⁴ And having little hope of bringing about
change in the actual world of politics, nineteenth-century German jurists were
able to retreat to the austere and elevated world of the Kulturstaat, where they
were able happily to reconcile formal individual freedom with a governmental
practice of authoritarianism. Kantian formalism thus exacerbates the tendencies,
already implicit in Rousseau, to permit the practices of authoritarian government
to flourish within the frame of a general and abstract individualism: in fulfilment
of Rousseau’s prophesies, increased governmentalization of the state was required
precisely for the purpose of managing the universalizing claims of abstract right.
The formal science of political right that Kant extolled thus remains enig-
matic. In a crucial section of the Rechtslehre, Kant appears to present this as a
science of natural law. He argues that a person who is an expert in positive law
may be called a jurist (Iurisconsultus), whereas only he who also ‘knows how to
apply them to concrete cases presented in experience’ acquires the art of juris-
prudence (Iurisprudentia).¹³⁵ Kant then states (though the formulation is not
unambiguous) that only by joining the two together—theoretical and practical
knowledge—can a ‘pure juridical science’ (Iurisscientia) be realized. Although
Kant here appears to be expressing the essence of the argument of this book on
the nature of political jurisprudence, he immediately claims that the designa-
tion of ‘pure juridical science’ properly belongs ‘to the systematic knowledge of
the domain of Natural Law’ (Ius naturae) and that ‘an expert in Natural Law
must be able to provide immutable principles for all positive legislation’.¹³⁶ Th is
use of the traditional language of natural law is puzzling, as indeed is the claim
that these ‘immutable principles’ meet the rigorous tests Kant makes about sci-
ence, understood as systematic knowledge acquired from explication of formal,
universally valid principles.¹³⁷
Kant’s formal science of political right was therefore simply not sustainable.
One consequence was that when, in the early-twentieth century, the Kantian for-
mulation eventually came to be applied in a systematic manner to law, it presented
itself as a formal science of positive law. Kelsen’s pure theory of law, underpinned
¹³³ Ibid. ¹³⁴ Ibid, 125. ¹³⁵ Kant, Rechtslehre, above n 82, 28. ¹³⁶ Ibid.
¹³⁷ Once again, Rousseau had already addressed these difficulties: see Rousseau, Discourse on
the Origin and the Foundations of Inequality among Men in his Political Writings [1751], above n 1,
vol 1, 111–188, Preface, 126: ‘all of them [jurists] base it [natural law] on such metaphysical prin-
ciples that even among us there are very few people capable of understanding these principles, let
alone of discovering them on their own. So that all the definitions by these learned men, which
in every other respect are in constant contradiction with one another, agree only on this, that it
is impossible to understand the Law of Nature and hence to obey it without being a very great
reasoner and a profound Metaphysician. Which means that in order to establish society men must
have employed an enlightenment which develops only with much difficulty and among very few
people within society itself ’.
by the idea that ‘is’ and ‘ought’ constitute entirely different fields of knowledge,
eliminated all reference to causal phenomena drawn from politics and history
and presented itself as a logical science of the normative ordering of positive
law.¹³⁸ The Kantian method of addressing claims of political right thus wanes,
and it makes a reappearance only towards the end of the twentieth century in
the guise of Kantian-inspired attempts, in the work of scholars such as Rawls and
Habermas, once again to devise principles of political right. These efforts involve
reworkings of the idea of the political pact, whether in the guise of Rawls’ original
position of reflective equilibrium behind a ‘veil of ignorance’¹³⁹ or of Habermas’
claims of communicative competence in an ‘ideal speech’ situation,¹⁴⁰ and the
principles they derive are addressed first to the nation-state but then later—as the
thicker, cultural commitments that underpin common interest at the national
level reveal difficulties for their theories—are applied on the global plane.¹⁴¹ But
this then leaves us uncertain who is the ‘we’ for whom these principles become a
practical option.
¹³⁸ Hans Kelsen, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssätze
(Tübingen: Mohr, 2nd edn, 1923); Hans Kelsen, Introduction to the Problems of Legal Theory
Bonnie L Paulson and Stanley L Paulson (trans of 1st edn [1934] of Reine Rechtslehre) (Oxford:
Clarendon Press, 1992). See Stanley Paulson, ‘The Neo-Kantian Dimension of Kelsen’s Legal
Theory’ (1992) 12 OJLS 311–332.
¹³⁹ John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972); John Rawls,
Political Liberalism (New York: Columbia University Press, rev edn, 1996).
¹⁴⁰ Jürgen Habermas, The Theory of Communicate Action, Vol.1: Reason and the Rationalization
of Society (London: Heinemann, 1984); Jürgen Habermas, Legitimation Crisis (Boston: Beacon
Press, 1975), 108.
¹⁴¹ John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999); Jürgen
Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge: Polity Press, 1999).
5
The Science of Political Right: II
I. Rousseau’s Pessimism
Rousseau understood the difficulties entailed in devising a pure science of polit-

ical right. In Emile, which he considered his masterwork,¹ he commented that ‘the
science of political right is yet to be born, and it is to be presumed that it will never
be born’.² Such pessimism is found scattered across his writings. In Considerations
on the Government of Poland, for example, he suggested that putting the law above
man ‘is a problem in politics which I liken to that of squaring the circle in geom-
etry’. If it can be solved, good government results. If not, then wherever people
believe that the rule of law prevails, they will be deceiving themselves: ‘it will be
men who will be ruling’.³ Elsewhere, he argued that if the rule of law cannot
be established, ‘and I frankly admit that I believe it cannot be’, then one must
go to the opposite extreme and elevate one man above the law. ‘I see no tolerable
mean between the most austere Democracy and the most perfect Hobbes-ism’, he
claimed, ‘for the conflict between men and the laws, which makes for a perpetual
intestine war in the State, is the worst of all political States’.⁴
Rousseau’s point is that even if philosophers are able clearly to specify the dic-
tates of reason, they do not seem to appreciate that men are motivated more by
their passions than their reason. ‘What is the use of reason’s enlightening us’, he
asks, ‘when passion leads us?’⁵ His most powerful rhetorical statement to this
effect is to be found in his essay on The State of War:
I open the books on right and on ethics, I listen to the scholars and jurists and, moved
by their ingratiating discourses, I deplore the miseries of nature, I admire the peace
¹ George Armstrong Kelly, ‘A General Overview’ in Patrick Riley (ed), The Cambridge
Companion to Rousseau (Cambridge: Cambridge University Press, 2001), 8–56, 23.
² Jean-Jacques Rousseau, Emile, or On Education [1762] Allan Bloom (trans) (New York: Basic
Books, 1979), 458.
³ Rousseau, Considerations on the Government of Poland and on its Projected Reformation [1772]
in his Political Writings Victor Gourevitch (ed) (Cambridge: Cambridge University Press, 1997),
vol 2, 177–260, 179.
⁴ Rousseau, ‘Letter to Mirabeau’ in his Political Writings, ibid, vol 2, 268–271, 270.
⁵ Ibid, 269.
I. Rousseau’s Pessimism 133
and justice established by the civil order, I bless the wisdom of public institutions, and
console myself for being a man by seeing that I am a citizen. Fully instructed about my
duties and happiness, I close the book, leave the class-room, and look around me; I see
unfortunate peoples groaning under an iron yoke, mankind crushed by a handful of
oppressors, starving masses overwhelmed by pain and hunger, whose blood and tears
the rich drink in peace, and everywhere the strong armed against the weak with the
frightful power of the laws.⁶
Rousseau might be right in his conviction that there can be no ‘tolerable mean’
between pure democracy and enlightened absolutism. But the world between
these two polarities—the world inhabited by ‘unfortunate peoples’ and ‘the
strong armed against the weak’—is the world in which we are obliged to live. His
claim in The State of War is that this is not a natural condition, but one created
within a social state. He thus sets out to show that ‘our political institutions were
themselves responsible for the crimes they were purported to solve, providing
solutions to problems of which those solutions were in fact the cause’.⁷
Should we really be so pessimistic? Is there no hope of finding foundations for
a science of political right within these restrictive parameters? Rousseau himself
was not always as negative as his stance in The State of War suggests. In his other
writings, we find ample evidence for developing a concept of political right. To
discover this, we must first turn to the fourth type of law that he identified in The
Social Contract and which, until now, I have neglected.
After having introduced the first three types of law (political right, civil laws,
and criminal laws), and which have been discussed above in Chapter 4,⁸ Rousseau
stated that there ‘must be added a fourth, the most important of all, which is graven
neither on marble or in bronze, but in the hearts of the Citizens’.⁹ This type of law is
more commonly known as morals, customs, and beliefs and, although ‘unknown
to our political theorists’, it is ‘the one on which the success of all the other laws
depends’.¹⁰ It is the type of law, he claims, that forms ‘the State’s genuine constitu-
tion’ and which ‘daily gathers new force’.¹¹ This is the type of force that, whenever
other laws age or wither away, is able to reanimate or replace them. A living law
expressive of the customs and beliefs of a people is that which sustains a nation in
the spirit of its institution and it ‘imperceptibly substitutes the force of habit for
that of authority’.¹² It is the type of law ‘to which the great Lawgiver attends in
secret’. That is, although the Lawgiver seems to confine himself to detailed legal
enactments, Rousseau argues that these are ‘but the ribs of the arching of which
morals, slower to arise, in the end form the immovable Keystone’.¹³
⁶ Rousseau, The State of War in his Political Writings, above n 3, vol 2, 162–176, 162.
⁷ Robert Wokler, ‘Ancient Postmodernism in the Philosophy of Rousseau’ in Patrick Riley
(ed), The Cambridge Companion to Rousseau (Cambridge: Cambridge University Press, 2001),
418–443, 423.
⁸ Ch 4, 108–109.
⁹ Rousseau, The Social Contract, in his Political Writings, above n 3, vol 2, 39–152, 81.
¹⁰ Ibid. ¹¹ Ibid. ¹² Ibid. ¹³ Ibid.
134 The Science of Political Right: II
Rousseau here aligns his argument closer to that of Montesquieu, who had
devoted himself to a more sociologically informed, historically derived study
of the ways in which political right had become instantiated in systems of gov-
ernment.¹⁴ Rousseau argues that Montesquieu had been content to deal only
‘with the positive laws of settled government’ and this is a different branch of
study to that of the search for what Rousseau calls the ‘useless science’ of polit-
ical right.¹⁵ This designation certainly suggests pessimism. But Rousseau then
elaborates by explaining that anyone seeking to make sound judgments in mat-
ters of actual government must also ‘know what ought to be in order to judge
soundly about what is’.¹⁶ Is he not then suggesting that realization of the true
principles of this science can take place only by way of immersion into both
types of study: the explication of the ideal in conjunction with the unfolding of
historical necessity?
Taking our cue from this insight, we can proceed by trying to distil princi-
ples of political right from studies of the evolution of governmental practice.
Immersion into the actual becomes an essential precondition for being able to
specify the values implicit in the system. Our starting point must be to reconsider
Rousseau’s political pact, not as an exercise in philosophy but as a matter of his-
torical sociology.
II. The Political Pact in Historical Practice
It is often not recognized that Rousseau offers two versions of the political pact.
In addition to that presented in The Social Contract, we can read his account of
the founding of government in his Discourse on Inequality as a study of the man-
ner in which this pact was actually framed in historical practice. Here Rousseau
argues that if we think of government as originating in a foundation, then the
pact that might have been struck in the remote past was a deceptive and fraudu-
lent device, drafted by the wealthy for the purpose of exploiting the poor.
Rousseau disagrees fundamentally with Hobbes on the circumstances of the
founding. Immediately before the pact to establish government was drawn up,
mankind did not live in a state of nature, as Hobbes had claimed, but in a primi-
tive form of society in which, fuelled by disputes over land, conflict existed.
He therefore argues that although ‘the philosophers who have examined the
foundations of society have all felt the necessity of going back as far as the state
¹⁴ Montesquieu, The Spirit of the Laws [1748] Anne M Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (trans and eds) (Cambridge: Cambridge University Press, 1989).
¹⁵ Rousseau, Emile, above n 2, 458: ‘The only work in a position to create this great and useless
science was the illustrious Montesquieu. But he was careful not to discuss the principles of political
right. He was content to discuss the positive right of established governments, and nothing in the
world is more different than those two studies’.
¹⁶ Ibid.
II. The Political Pact in Historical Practice 135
of Nature, . . . none of them has reached it’.¹⁷ When speaking of ‘need, greed,
oppression, desires, and pride’, they ‘transferred to the state of Nature ideas they
had taken from society’.¹⁸ Speaking of savages, they described citizens. Hobbes
wrongly claims that ‘because he has no idea of goodness man is naturally
wicked, that he is vicious because he does not know virtue’.¹⁹ Hobbes is wrong,
Rousseau argues, because ‘he improperly included in Savage man’s care for his
preservation the need to satisfy a multitude of passions that are the product of
Society’.²⁰
In the first part of the Discourse on Inequality, Rousseau’s objective is to show
that although there exists a natural or physical inequality in the state of nature,
such inequality ‘is scarcely perceptible’ and that ‘its influence there is almost
nil’.²¹ In this condition, it is ‘neither the growth of enlightenment nor the curb
of the Law, but the calm of the passions and the ignorance of vice that keep them
from evil wrongdoing’.²² Far from being a war of all against all, the natural state
was relatively benign, and it operated according to two natural law precepts that
exist prior to reason: self-preservation and pity. It is, in particular, pity—‘a natural
repugnance to seeing any sentient Being, and especially any being like ourselves,
perish or suffer’²³—that moderates individual self-love, assumes the role of law
and morality, and ‘contributes to the mutual preservation of the entire species’.²⁴
By contrast, ‘it is reason that engenders amour-propre, and reflection that
reinforces it; reason that turns man back on himself; reason that separates him
from everything that troubles and afflicts him’.²⁵ Reason and philosophy thus
contribute to social ills mainly by causing individuals to reflect on their isolation.
Anticipating Kant, Rousseau suggests it is pity that, ‘in place of that sublime
maxim of reasoned justice Do unto others as you would have them do unto you,
inspires in all Men this other maxim of natural goodness, much less perfect but
perhaps more useful than the first: Do your good with the least possible harm to
others’.²⁶
The state of nature, he argues, was a relatively benign condition in which
mankind wandered through the woods, gradually assumed a more settled life,
formed associations and then a nation ‘united in morals and character, not by
any Rules or Laws, but by the same kind of life, and of foods, and the influence of
a shared climate’.²⁷ Settlement, based on the inventions of metallurgy and agri-
culture, soon followed and this led to the revolution: ‘For the Poet it is gold and
silver; but for the Philosopher it is iron and wheat that civilized men, and ruined
¹⁷ Rousseau, Discourse on the Origin and Foundations of Inequality Among Men [1755] in his
Political Writings, above n 3, vol 1, 111–222, 132.
¹⁸ Ibid.
¹⁹ Ibid, 151. ²⁰ Ibid. ²¹ Ibid, 159. ²² Ibid, 151–152.
²³ Ibid, 127. It is, continues Rousseau, ‘from the combination our mind is capable of making
between these two Principles, without it being necessary to introduce into it that of sociability, that
all the rules of natural right seem to me to flow’.
²⁴ Ibid, 154. ²⁵ Ibid, 153. ²⁶ Ibid, 154. ²⁷ Ibid, 165.
Mankind’.²⁸ Settlement led to land acquisition, and this in turn led to struggle
and conflict over resources. And so the second part of Discourse on Inequality
opens with Rousseau’s immortal words: ‘The first man who, having enclosed a
piece of ground, to whom it occurred to say, this is mine, and found people suf-
ficiently simple to believe him, was the true founder of civil society’.²⁹
But what of the pact? Rousseau argues that the rich must have realized just
how much they risked by ‘a perpetual war of which they alone bore the full cost,
and in which everyone risked his life while only some also risked goods’.³⁰ They
also soon recognized that what they had acquired by force could, by others, be
removed by force. So they ‘invented specious arguments’ to win over the people,
claiming that establishing a supreme power would protect the weak from oppres-
sion, provide government according to impartial laws, and offer security for all.
And, perceiving the advantages of establishing a political constitution while not
having sufficient experience to appreciate its dangers, ‘all ran towards their chains
in the belief that they were securing their freedom’.³¹ This, Rousseau contends,
must have been the ‘origin of Society and of Laws, which gave the weak new
fetters and the rich new forces, irreversibly destroyed natural freedom, forever
fixed the Law of property and inequality, transformed a skilful usurpation into
an irrevocable right, and for the profit of a few ambitious men henceforth subju-
gated the whole of Mankind to labour, servitude and misery’.³²
In contrast to Hobbes, who envisaged the political pact as a rational and just
solution to the war of all against all, Rousseau argues that the pact was deftly
drafted for the benefit of the rich. Since it is a basic principle of political right ‘that
Peoples gave themselves Chiefs to defend their freedom and not to enslave them’,
governments did not, at the outset, possess arbitrary power. But even if they did,
arbitrary power, ‘being by its Nature illegitimate, cannot have served as the foun-
dation for the Rights of Society nor, consequently, for instituted inequality’.³³
Magistracy and its rights ‘were established only by the fundamental laws’ and
if those laws are broken ‘the Magistrates would cease to be legitimate’ and we
would revert to a state of natural freedom.³⁴ Governmental development is thus
marked by a perennial tension between lawful and arbitrary rule, between formal
equality and material inequality.
Of the four main sources of inequality—wealth, nobility, power, and
personal merit—Rousseau claims that wealth is the most corrosive because,
‘being the most immediately useful to well-being and the easiest to transmit,
it can readily be used to buy all the rest’.³⁵ This wealth erodes the rights of
citizens and the liberties of nations, until eventually ‘Despotism gradually rear-
ing its hideous head and devouring everything good and wholesome it might
have seen anywhere in the State, would finally succeed in trampling Laws and
²⁸ Ibid, 168. ²⁹ Ibid, 161. ³⁰ Ibid, 172. ³¹ Ibid, 173. ³² Ibid.

³³ Ibid, 176, 179. ³⁴ Ibid, 180. ³⁵ Ibid, 184.
People underfoot’ and would establish itself ‘on the ruins of the Republic’.³⁶ This,
it appears, is the inevitable final stage of inequality in which ‘all private individu-
als again become equal because they are nothing and, since the Subjects have no
other Law left than the will of the Master, and the Master no other rule than his
passions, the notion of the good and the principles of justice again vanish’.³⁷
The cycle completed, Rousseau returns to the contrast between savage and
civilized man: the first ‘breathes nothing but repose and freedom, he wants
only to live and to remain idle’ while the latter ‘works to the death, even rushes
towards it in order to be in a position to live’.³⁸ Civilized man, notes Rousseau,
‘courts the great who he hates, and the rich whom he despises; he spares nothing
to attain the honour of serving them; he vaingloriously boasts of his baseness
and of their protection; and, proud of his slavery, he speaks contemptuously of
those who have not the honour of sharing it’.³⁹ While the savage lives within
himself, civilized man knows only how to live in the opinion of others. This is a
world ‘reduced to appearances’, a world which has become mere art and mum-
mery, a world of ‘honour without virtue, reason without wisdom, and pleasure
without happiness’.⁴⁰
III. Rousseau’s Sociology of Political Right
In Discourse on Inequality Rousseau argued that although there existed a natural

or physical inequality amongst humans in a state of nature, this was as nothing
compared to the political or moral inequality that has been engrained in society
as a consequence of the political pact that founds a state. Where Hobbes refers to
a war of all against all engendered by natural equality, Rousseau talks of conflict
instigated by material inequality. Where Hobbes claims that the political pact
establishes justice by providing a remedy for the state of war, Rousseau argues
that the pact is a fraud imposed on the poor by the rich and designed to legitimate
the latter’s rule. Where Hobbes maintains that the establishment of the state cre-
ates a formal legal and political equality of persons, Rousseau contends that state
formation leads to the institutionalization of new forms of subjection. In this
account, Rousseau’s argument about political right can be grasped only by first
noting the nature of these forms.
The most basic shift that occurs with the formation of the civil state is in
man’s character. Rousseau argues that man’s natural amour de soi-même, which
expresses an instinctual, self-regarding disposition, is within society converted
into what he calls amour-propre, a form of self-esteem that expresses a desire to
present oneself as superior to others. In this process, man loses the sense of auton-
omy since his natural concern for being is replaced with a social concern over
appearance. What results is a form of slavery through dependency on the opinion
³⁶ Ibid, 185. ³⁷ Ibid, 185–186. ³⁸ Ibid, 187. ³⁹ Ibid. ⁴⁰ Ibid.

of others. This leads to moral weakness as man becomes a slave to vanity, pride,
jealousy, and envy, passions which, contrary to Hobbes’ claim, did not predom-
inate in the state of nature. This type of moral weakness, in which social man
learns to lie, to deceive, to dissimulate, and to be anything but himself, eventually
leads to political servitude, in which material inequalities are given legitimacy
through the constitutional ordering of government. This, Rousseau argues, is a
master-slave relationship in which the slaves do not recognize their conditions of
servitude: pursuing material advantage, they sacrifice their individuality; seek-
ing to influence they end up conforming; striving for success their lives become
meaningless.
What then of the claims of political right? Under such political constitutions,
the rule of opinion prevails in a world in which, driven by amour-propre, ‘men no
longer believe what they see, but see what they believe’.⁴¹ The rule of opinion thus
becomes the rule of prejudice and deception. This mode of rule is reinforced by
the high arts which, through a form of display that amounts to an exhibition of
vanity and pride, embellish the order of inequality.⁴² And since artists and intel-
lectuals offer their services to rulers as the opiate of the masses, we should not
expect anything different from the noblesse de robe. These jurists obfuscate and
over-complicate the law for the purpose of maintaining their own privileged sta-
tus and illustrate the way that professional associations promote their own inter-
ests at the expense of others.
This analysis may not seem to offer much hope. It does, however, enable us to
place the argument of The Social Contract in perspective. The Social Contract is
Rousseau’s attempt to hold out the prospect of a fresh start based on a new con-
ception of equality, that is, not a rough natural equality of condition operating in
the state of nature but an equality based on equality of political rights. We see the
foundations of this in Rousseau’s argument that the transition from the natural
to the civil state is able, potentially at least, to establish conditions for intellectual,
moral, and political progress.⁴³ These are the claims of reason and conscience,
which remained dormant within the solitude of the state of nature and which
have become corrupted in civil society. Civil society becomes the site that opens
up great potentialities, while also holding out the threat of sustaining immorality
and evil.
When Rousseau says that subordinating man to the ideals of liberty and
equality implicit in law is similar to the challenge of squaring the circle in
geometry, it should not be read as a counsel of impossibility; it is a requirement
that we remain conscious of the difficulties of realizing these ideals in modern
society. The answer Rousseau himself suggests is that enactment of laws is not
⁴¹ Judith Shklar, Men and Citizens: A Study of Rousseau’s Social Theory (Cambridge: Cambridge
⁴² Rousseau, Discourse on the Sciences and Arts [1751] in his Political Writings, above n 3,
vol 1, 1–28.
⁴³ Rousseau, The Social Contract, above n 9, 53–54; see above ch 4, 115.
enough: the good society can be promoted only if the laws are consonant with
the customs of the people. Laws operate solely with respect to external condi-
tions to guide action; only customs are able to reach the ‘inner man’ and shape
belief. Working in the tradition of Machiavelli and Montesquieu,⁴⁴ he suggests
the need for a more sociologically informed account of public law.
Rousseau finds within customs the residue of theories of natural law: custom
as second nature. Inequalities authorized by positive law and justified by rea-
son and philosophy can still be seen to subvert the natural ways that often are
reflected in the customs of a people. Inequality corrodes the ability to feel for
others, but pity—a natural sentiment—moderates amour-propre and ‘contrib-
utes to the mutual preservation of the entire species’.⁴⁵ Inequalities authorized
by positive law offend natural right since ‘it is manifestly against the Law of
Nature, however defined, that a child command an old man, an imbecile lead
a wise man, and a handful of people abound in superfluities, while the starving
multitude lacks in necessities’.⁴⁶ Rousseau here maintains hope in the ordinary
ways of the ordinary people. This may not be ideal, but it is the best means
of addressing a bad situation. Th is is where the claims of political right must
commence.
It is therefore not entirely circumstantial that Rousseau was led to a study
of les principes du droit politique shortly after the Discourse on Inequality. The
transition is marked by his preface to Narcissus, written in 1752, in which he
argued that ‘customs are the morality of the people’ and that, as soon as they
cease to respect these customs, the people ‘is left with no rule but its passions,
and no curb but the laws, which can sometimes keep the wicked in check, but
can never make them good’.⁴⁷ A moral people is a people ‘with respect for its
laws and without desire to improve on its traditional ways’.⁴⁸ Such a moral
people, he elaborates, must ‘guard against the sciences, and above all against
men of science and learning whose sententious and dogmatic maxims would
soon teach it to despise both its ways and its laws’.⁴⁹ And if under the influence
of such philosophers of law the customary ways are undermined, the nation is
corrupted. Rather than appealing to abstract ideals as the originating source
of political right, we should look to the customary ways—and the patriotic
spirit⁵⁰—of the people.
⁴⁴ Machiavelli, The Discourses [1531] Leslie J Walker (trans) Bernard Crick (ed) (Harmond-
sworth: Penguin, 1983), I.17 (at 159): ‘if custom is corrupted, good legislation is of no avail’ and
(at 160) ‘just as laws are needed for customs, so if laws are required, there is a need of good
customs’. See also Montesquieu, above n 14, Bk 19, ch 27.
⁴⁵ Rousseau, Discourse on Inequality, above n 17, 154. ⁴⁶ Ibid, 188.
⁴⁷ Rousseau, ‘Preface to Narcissus’ in his Political Writings [1752], above n 3, vol 1, 92–106,
102–103.
⁴⁸ Ibid, 102. ⁴⁹ Ibid.
⁵⁰ Rousseau sees in patriotism a means of opposing the materialism of modern life: see, eg,
Rousseau, Discourse on Political Economy in his Political Writings, above n 3, vol 2, 3–38, 15–16;
Rousseau, Considerations on the Government of Poland in his Political Writings, above n 3, 189–190.
IV. Fichte’s Foundations of Natural Right
Rousseau’s criticisms of empty formalism in general, and specifically of Diderot’s

attempt to build the idea of the general will on the foundation of common
humanity,⁵¹ suggest that he would have been highly critical of Kant’s formal-
ism and cosmopolitanism. From this reading of Rousseau, his intellectual heirs
are not Kant and his followers but those who develop theories of political right
as elaborations of a potential rooted in experience. This meant working from
within an extant state tradition. Foremost among the German scholars who
developed this aspect of Rousseau’s legacy are Fichte and Hegel. Before coming
to Hegel’s pre-eminent contribution, the work of JG Fichte should briefly be
considered.
Fichte occupies a controversial position in German philosophy: he has vari-
ously been labelled an individualist and a socialist, a liberal and an authori-
tarian, a cosmopolitan and a nationalist. Though following Kant in locating
God as the ‘moral order of the world’, he resigned his chair in Jena over accusa-
tions of atheism.⁵² Though criticized for anti-Semitism, he resigned from the
Rectorship of the University of Berlin over a cause in which he sought to protect
a Jewish student from being subjected to an injustice.⁵³ In part, such discrepant
assessments are attributable to the fact that Fichte’s political thought evolved at
various stages of his career. It moved through four main periods: first, as an indi-
vidualist and Jacobin (1789–1796), secondly, as an exponent of radical natural
law (1796–1799), then as a theorist of socialism (1799–1806), and finally as a
nationalist and defender of the state (1806–1814).
Fichte’s significance for our purposes arises from the fact that, although a disci-
ple of Kant, he took Kant’s ideas in a different direction. Like Kant, Fichte broke
with a medieval world that placed God at its centre and, following the develop-
ment of Cartesian logic, he placed the ‘I’ in that central place. Also like Kant,
Fichte believed that reality does not exist independently of the mind. But Fichte
went one step further: rejecting the distinction between knowing and the thing-
in-itself, Fichte argued that man becomes conscious of himself only by produc-
ing a world of objects. All that exists, he argued, is a world of consciousness, the
world of actual experience. There is no beyond, no realm of transcendental real-
ity. Fichte thus sought to resolve the dichotomy in Kant’s philosophy arising from
⁵¹ Rousseau, ‘Geneva Manuscript’ in his Political Writings, above n 3, vol 2, 153–161, 158: ‘We
conceive of the general society in terms of our particular societies . . . Which shows what one should
think about those supposed Cosmopolites who, justifying their love of fatherland by their love of
mankind, boast of loving everyone so that they might have the right to love no one’. On Diderot,
see Robert Wokler, ‘The Influence of Diderot on the Political Theory of Rousseau’ (1975) Studies on
Voltaire and the Eighteenth Century 55–112.
⁵² See Terry Pinkard, German Philosophy, 1760–1860: The Legacy of Idealism (Cambridge:
⁵³ Paul R Sweet, ‘Fichte and the Jews: A Case of Tension between Civil Rights and Human
Rights’ (1993) 16 German Studies Review 37–48.
his rigorous distinction between the material world of ‘is’ and the moral world
of ‘ought’ by arguing that the self is not a thing but is intrinsically a normative
construction. Fichte therefore resolved the ‘Kantian paradox’⁵⁴ by taking ‘a radi-
cal, normative-all-the-way-down stance toward that problem, arguing in effect
that the difference between the normative and the factual (the non-normative)
was itself a normative issue about how we ought to treat things’.⁵⁵ All judgment
incorporates some reference to a norm: even those that present themselves in the
form ‘this is what I believe’ are, argues Fichte, to be understood as ‘this is what I
and all others ought to believe’.
In Fichte’s work we see the flourishing of German Idealist philosophy. Its par-
ticular value for this study lies in the way he worked through its foundational
elements—the original act of self-attribution, the assertion of the creativity of
‘I-hood’ (Ichheit)—to develop a specifically political argument about authority
and freedom. Fichte formulated this science of political right mainly during the
second period of his intellectual development, and it presents itself as a radical
theory of natural right. This argument is most comprehensively expressed in his
Foundations of Natural Rights.⁵⁶
Since the starting point of Foundations is that of the Ich, Fichte’s philosophy
would appear to be highly individualistic. This is deceptive. Although life is con-
structed from the distinction between subject and object, there is in reality not
a single subject, a single consciousness: instead, there is a multiplicity of subjects
all of whom are potentially opposed to one another. Consequently, rather than
forming an organic whole, the sense-world consists of a plurality of views, each
with their own oppositions and multiplicities. In seeking to make sense of this
world, individuals strive to find unity, and this reveals itself ultimately in the idea
of Ichheit. But although this Ich can be realized only in the individual, it is not
the expression of the ego of a single individual: it is best understood as a super-
individual construction. Understanding therefore comes about only when the
various happenings that occur in the world can be explained as the workings of
some common principle.
Fichte argues that man has an Ich only insofar as he conceives himself to be
an active and thinking being (the first theorem), that when acting as such he
must necessarily think of himself in a community of other free beings (the second
theorem), and that this rational being ‘cannot assume the existence of other finite
rational beings outside it without positing itself as standing with those beings
in a particular relation, called a relation of right [Rechtsverhältniß ]’ (the third
theorem).⁵⁷ That is, the relationship between free beings must be assumed to be
⁵⁴ See above ch 4, 123.

⁵⁵ Pinkard, above n 52, 127.
⁵⁶ JG Fichte, Foundations of Natural Rights According to the Principles of the Wissenschaftslehre
[1796] Michael Baur (trans) Frederick Neuhouser (ed) (Cambridge: Cambridge University Press,
2000).
⁵⁷ Ibid, 39.
a relationship of right, and freedom is possible only if each being acknowledges

that he is subject to those limitations that are necessary for the maintenance of
the freedom of the other beings. Individual freedom assumes the existence of a
community of free beings. Law (Recht) thus is the expression of a social relation-
ship, and it serves the function of determining the inter-subjective boundaries of
individual freedom.
The advance that Fichte here makes is to treat law as a social and relational tech-
nique that operates in accordance with its own distinctive purposes. He contends
that, unlike Kant’s attempt to derive a theory of political right from the moral
law, his own concept of political right is ‘a separate science standing on its own’
which has nothing to do with the moral law.⁵⁸ Fichte argues that the ‘concept of
duty, which arises from the moral law, is directly opposed to the concept of right
in most of its characteristics’, not least because, while the moral law commands
duty categorically, ‘the law of right only permits, but never commands, that one
exercise one’s rights’.⁵⁹ Similarly, since beings ‘enter into reciprocal interaction
with one another only through actions, expressions of their freedom in the sens-
ible world, . . . whatever has no causality in the sensible world—but remains inside
the mind instead—belongs before another tribunal, the tribunal of morality’.⁶⁰
It is for this reason that Fichte argued that it is nonsensical to speak of a right to
freedom of thought or freedom of conscience—such freedoms are concerned with
mental actions only. Since right also expresses a relationship between rational
beings, it is similarly nonsensical to speak of a right to land or animals. And since
this relation is one of efficacy, it is also a mistake to talk of rights when the spheres
of efficacy are completely separated, as when one talks of the rights of the dead in
relation to the living; these might entail duties of conscience but cannot generate
obligations as a matter of right.
But how, asks Fichte, is a community of free beings, qua free beings, possible?
How is such a regime established? The short answer is that the law must be a
power: ‘the concept of the law and the concept of a supreme power must be syn-
thetically united’.⁶¹ Demonstrating the way this can be achieved is ‘the task of
the science of right’.⁶² And the solution to this problem is found in the concept of
a commonwealth.
In explaining this solution, Fichte starts with the concept of a person’s original
right (Urrecht). This concept, Fichte emphasizes, must be recognized to be ‘a mere
fiction’ that expresses an ‘ideal possibility’ and has ‘no real meaning’.⁶³ Original
right is postulated only for the sake of the science of right; anyone who fails to see
this point arrives at ‘a merely formal theory of right’.⁶⁴ That is, there is no condi-
tion in which original rights exist since a ‘human being has actual rights only in
community with others’.⁶⁵ The concept of original right is thus a purely formal
⁵⁸ Ibid, 11. ⁵⁹ Ibid, 50. ⁶⁰ Ibid, 51. ⁶¹ Ibid, 97.

⁶² Ibid, 79 (emphasis in original). ⁶³ Ibid, 101–102. ⁶⁴ Ibid.
⁶⁵ Ibid, 102.
requirement of a theory based on freedom of the will. From this original right,
Fichte derives a right of coercion (Zwangsrecht) against those who might violate
an original right. And from these rights are derived the reciprocally conditioned
self-limitation of rights: ‘If A ought to limit his freedom so that B alongside him
can also be free, then B, in turn, ought also to limit his freedom so that A along-
side him can be free, so that a sphere of free efficacy also remains for A’.⁶⁶ This is
the principle of ‘mutual recognition’ (Anerkennung), which Fichte regards as the
true characteristic of humanity.⁶⁷
From this rights perspective, the critical question becomes one of determin-
ing how a power can be established that can enforce these reciprocal rights.
Fichte notes that although the common objective is that of mutual security, this
is not easily established since, if ‘persons are motivated only by self-love and not
morality, each individual wills the security of the other only because he wills his
own’ and each person thus ends up ‘subordinat[ing] the common end to his pri-
vate end’.⁶⁸ Thus, the problem of political right is first ‘to find a will that cannot
possibly be other than a common will’ and then to ensure that this common will
is vested with a superior power.⁶⁹ Fichte here posits a solution—that of connect-
ing right and power—which is a variant of Spinoza’s argument that right flows
from power.⁷⁰
Fichte argues that this common will is formed through the process of found-
ing a commonwealth.⁷¹ This is achieved through a version of social contract
theory that requires not one but three linked contracts. The first is a property
contract, in which each individual promises to respect the property rights of all
the others, on condition that they do the same; this creates a negative obligation.
The second is a protection contract in which each individual promises to help
all individuals to protect their property, on the condition that they do likewise;
this mutual protection pledge creates a positive obligation. These first two con-
tracts are then secured by means of a third contract, the unification contract.
⁶⁶ Ibid, 110.
⁶⁷ Ibid, 41–49, 116–117. On the importance of recognition in Fichte’s thought, see Allen W
Wood, Hegel’s Ethical Thought (Cambridge; Cambridge University Press, 1990), 77–83.
⁶⁸ Fichte, above n 56, 133.
⁶⁹ Ibid, 134. See Susan Shell, ‘ “A Determined Stand”: Freedom and Security in Fichte’s Science
of Right’ (1992) 25 Polity 95–121, 104–105: ‘Fichte thus unites what Rousseau kept separate—the
theoretical question of what a General Will is and the practical question of how it can be made
effectual. The latter, according to Rousseau, requires, above all, an habituation on the part of the
citizens to virtue. Fichte, by contrast, looks not to inner virtue, but to the perfect application of the
outer or compulsive law, to bring about the requisite harmony of individual and universal’.
⁷⁰ See above ch 3, 105.
⁷¹ Fichte, it should be noted, does directly address the problem of the foundation. He states:
‘only the populace can declare themselves to be the populace; and thus—before they can declare
themselves to be the populace—they would have to convene as the populace, which, as one can
see, is contradictory’. He continues that: ‘There is only one way to eliminate this contradiction: the
constitution must specify in advance the circumstance under which the people shall come together
as the populace. . . . It will never be necessary for them to convene . . . unless right and the law have
ceased to function altogether’ (Fichte, above n 56, 150).
It is as a consequence of this third contract that the individual becomes a part

of the organized whole, and the whole thus comes into existence as a result of
contracts among individuals. All three contracts in their unity constitute the
political pact.⁷²
With the formation of a commonwealth, the coercive right (Zwangsrecht)
is transferred to the collective. But how is this power to be exercised? Where is
the superior power that exercises these rights on behalf of the collective located?
Fichte argues that the superior power that is entrusted with the administration of
right cannot be the people as a whole, not least because then the populace would
become ‘simultaneously both judge and party in the administration of right’.⁷³
Nor can it be vested in one or more persons who are unaccountable to the peo-
ple since that would be despotic. The ‘fundamental law of any constitution that
accords with reason and right’, he claims, is that ‘the executive power . . . and the
right to oversee and judge how the executive power is administered . . . are to be
separate’, and that while the right to oversee and judge must remain with the
people as a whole, the executive power ‘is to be entrusted to particular persons’.⁷⁴
Government must therefore form an institution separate from the people. But
this does not mean that there must be a formal separation of governmental pow-
ers; on this, Fichte is sceptical since ‘those who administer the executive power
are charged with presiding over right in general and are responsible for seeing to it
that right prevails’.⁷⁵ Provided the fundamental law is respected and the exercise
of public power is rendered accountable, the ‘question concerning which govern-
mental constitution is best suited for a particular state is not a question for the
doctrine of right but for politics’.⁷⁶
Fichte’s main objective in Foundations of Natural Rights is to explain and jus-
tify the authority of the state. The state, he argues, is neither an ideal entity, nor
an end in itself. Its purpose is to maintain the basic rights of the individual, rights
to self-preservation, to property, and to self-determination. Although this theory
is individualist in character, his basic argument is that this fundamental purpose
can be realized only by vesting the state with an authoritative political will, which
is the common will. Consequently, his objection to the idea of the separation of
powers is founded on the belief that this type of a mechanism could frustrate
the realization of the common will. Any limitation on the governmental power,
then, must be found not in structure but in function. Fichte thus recognizes the
distinction between alienable and inalienable rights and identifies the criterion
of inalienability in those rights that are intrinsic to human dignity and flour-
ishing. But while the latter rights cannot be contracted away, it is for the gov-
ernment—in forming the common will—to determine the distinction between
these two sets of rights. The main constraint on government, then, is through its
⁷² Ibid, 165–182. ⁷³ Ibid, 140 (emphasis in original). ⁷⁴ Ibid, 141.

⁷⁵ Ibid, 142. ⁷⁶ Ibid, 144, 249–263.
accountability to the people.⁷⁷ For the purpose of realizing freedom, the state
must be authoritarian.
The innovation Fichte effects in the science of political right derives from the
way he develops Rousseau’s insight that individuality can flourish only within
a well-ordered state. For Fichte, freedom is not simply a negative criterion: it is
a condition of evolution through the processes of civilization. Thus, the Ich is
not so much the foundation of a system as a horizon—Ichheit entails a process
of becoming. Further, this complex of ‘mutual recognition’ cannot be realized
through the institutionalization of a certain machinery of government; it needs
active engagement. This is why, following Spinoza, Fichte argues that ‘an unjust
power is always weak’. It is weak ‘because it is inconsistent and because general
opinion—and often even the opinion of those it uses as tools—is opposed to it;
and the more unjust it is, the weaker and more powerless it is’.⁷⁸ Political power
rests ultimately with the people and can be generated only through well-ordered
governing arrangements.
Fichte thus gives us a conception of law in which the individual rational being
becomes the source of rights which can be realized only within the state. By plac-
ing the individual at the centre of his theory, the authority of God or customary
feudal hierarchies is displaced. By making the individual the source of law, the
idea of the constituent power of the people—as had been expressed, for example,
in the French Revolution—is acknowledged. By recognizing that these rights can
only be collectively realized, the state is identified as the institution that shapes
the entire realm of external human relations. And by arguing that rights depend
on ‘mutual recognition’, he specifies the principle that drives the development of
modern political right.
Although sometimes treated as ‘the last great representative of the school of
Natural Law’,⁷⁹ Fichte in reality marks the end of natural law. This is not simply
because reason takes the place of God in his science of right, and the theocratic
idea is replaced by contract. Rather it is that Fichte also rejects the intrinsically
ethical character of law. Kant had tried to separate ethics and law, but ended up
maintaining the dependence of law on ethics.⁸⁰ Fichte, by contrast, argues that
political right is an autonomous science that does not get its sanction from ethics.
He further argues that humans are not moral by nature, but must make them-
selves so through action within the state. As he states in Foundations of Natural
Rights, ‘there is no natural right at all in the sense often given to that term, i.e.
⁷⁷ Fichte did not, however, examine in much detail the institutional arrangement by which
this accountability was to be achieved. Adapting the Spartan system, and following Althusius (see
above ch 3, 95), Fichte relied primarily on the role of the Ephors: see ibid, 141–144, 151–162. This
device was subsequently criticized by Hegel as based on a ‘superficial conception of the state’: see
Hegel, below n 83, §273.
⁷⁸ Fichte, above n 56, 161.
⁷⁹ Reinhold Aris, History of Political Thought in Germany, 1789–1815 (London: Allen & Unwin,
1936), 113.
⁸⁰ See above ch 4, 127–131.
there can be no rightful relation between human beings except within a com-
monwealth and under positive laws’.⁸¹ Law cannot be conceived outside the
state, and is to be assessed by reference to historical and political factors. Fichte’s
thought seeks decisively to bring the era of natural law to a close and to mark the
beginning of the formation of an autonomous science of political right.
V. The Concept of Political Right in Hegel’s Rechtsphilosophie
If Fichte lays the foundation for an autonomous science of political right, then it
was Hegel’s achievement to make the crucial break with the fiction of the polit-
ical pact, the device that had been utilized to sever political right first from the
claims of theology, then from the claims of custom, and ultimately from the
claims of morality. By rejecting this fiction Hegel was able to circumvent some
of the foundational paradoxes and to base the science of political right on the
autonomous entity of the state.⁸² Hegel outlined this concept of political right in
his Rechtsphilosophie, which was devoted to explaining the ‘science of the state’,
understood as ‘the endeavour to apprehend and portray the state as something
inherently rational’.⁸³ The key to Hegel’s concept of political right is found in this
notion of the inherent rationality of the state.
Hegel’s concept of the state is not straightforward. The state, he claims, ‘is the
actuality of the ethical Idea’: it is ‘the actuality of the substantial will which it pos-
sesses in the particular self-consciousness once that consciousness has been raised
to consciousness of its universality’.⁸⁴ This needs to be unpacked. For Hegel, the
state is ‘an organism’. By this, he means that the various institutions, powers, and
functions of the state must be viewed as the process by which ‘the universal con-
tinually engenders itself in a necessary way’.⁸⁵ This is necessary because the ‘specific
character’ of these institutions ‘is fixed by the nature of the concept’.⁸⁶ Through this
process, the state ‘maintains its identity’.⁸⁷ Although this sounds tautological, his
point is that just as the nature of God cannot be comprehended by listing his par-
ticular attributes but must first be grasped in essence, so too with the nature of the
state. The state ‘must be treated as a great architectonic structure, as a hieroglyph
of the reason which reveals itself in actuality’.⁸⁸ All that is accidental, arbitrary, and
merely functional must be discarded, so that what is rational and essential can be
exposed and the state revealed as a self-determining, sovereign will.
⁸¹ Fichte, above n 56, 132 (emphasis in original).

⁸² In this sense, Hegel resolved the problem of Kant’s paradox (above 141) by arguing that it
could not be resolved with metaphysics alone; it had to be confronted in social terms through the
demands of a struggle for recognition: see Pinkard, above n 52, 226–229.
⁸³ GWF Hegel, Philosophy of Right [1821] TM Knox (trans of Grundlinien der Philosophie des
Rechts) (Oxford: Oxford University Press, 1952), 11 (Preface).
⁸⁴ Ibid, §§257, 258. ⁸⁵ Ibid, §269. ⁸⁶ Ibid. ⁸⁷ Ibid, §269A.
⁸⁸ Ibid, §279A.
V. Hegel’s Rechtsphilosophie 147
Hegel argues that the state produces and maintains its identity as a unique,
exclusive, and relational entity through its constitution. And it is through his
understanding of the concept of the constitution that we see how the idea of the
social contract is finessed. ‘Who’, he asks, ‘is to frame the constitution?’ Although
the question seems clear, Hegel argues that ‘closer inspection shows at once that
it is meaningless, for it presupposes that there is no constitution there, but only
an agglomeration of atomic individuals’.⁸⁹ The difficulty with this assumption
is that the concept of a constitution can know nothing about such an arbitrary
multitude and the problems it faces in having such a framework presented to, or
imposed upon, them. But if it is assumed that there already exists some constitu-
tion, then the question becomes not one of creating but only that of amending the
constitution. Hegel regards the question of who makes the constitution as mean-
ingless since for him ‘it is absolutely essential that the constitution should not be
regarded as something made, even though it has come into being in time’.⁹⁰ It
must, he insists, be treated ‘as something simply existent in and by itself . . . and so
exalted above the sphere of things that are made’.⁹¹
The concepts of state and constitution, from which the meaning of political
right is to be distilled, thus appear to be rarefied entities. They are expressions
of rationality, products of a world that the mind has made for itself. ‘As high
as mind stands above nature’, Hegel writes, ‘so high does the state stand above
physical life’.⁹² But it would be wrong to treat these concepts as purely abstract
formulations. For Hegel, these rational entities are not the products of abstract
speculation: they are ideas that have been revealed through a dialectical historical
process. Human history must not be treated as a random series of events, but as
the progressive realization of reason. Only by grasping the workings of this proc-
ess of development can we understand political right. Hegel thus seeks to resolve
the tension between reason and history in the elaboration of political right by
revealing political right to be an elaboration of the working of reason in history.
The significance of Hegel’s understanding of the concept of political right is
most clearly explained in the Preface to the Philosophy of Right, since it is here that
he identifies the jurisprudential controversies with which he is engaged. These
questions, which concern ‘the truth about right, ethics, and the state’, are acknow-
ledged to be perennial, going back to the earliest formulations of law, morality,
and religion.⁹³ But the philosophical method able to address these matters is, he
argues, now suffering from a ‘shameful decay’.⁹⁴ Scholars veer between accepting
the authority of fact (taking ‘the simple line of adhering with trustful conviction
to what is publicly accepted as true and then building on this firm foundation’)
and extolling the virtue of free thought by creating normative schemes of their
⁸⁹ Ibid, §273R. ⁹⁰ Ibid.

⁹¹ Ibid. See further, GWF Hegel, The Philosophy of Mind [1830] W Wallace (trans) (Oxford:
Clarendon Press, 1971), §540: ‘what is . . . called “making” a constitution is . . . a thing that has never
happened in history . . . a constitution only develops from the national spirit’.
⁹² Hegel, above n 83, §272A. ⁹³ Ibid, 3. ⁹⁴ Ibid, 2.
own devising (‘however lofty the right of thought may be, it is perverted into
wrong if it is only this [opining] which passes for thinking and if thinking knows
itself to be free only when it diverges from what is universally recognized’).⁹⁵ All
fail to recognize that ‘right and ethics, and the actual world of justice and ethical
life, are understood through thoughts’, that ‘through thoughts they are invested
with a rational form, i.e. with universality and determinacy’, and that this form,
which is opposed to subjective conviction, is the form of law.⁹⁶
Hegel certainly stands opposed to the Romantic movement of his times which,
‘with the maximum amount of pretension’, had proclaimed that anybody who
cared to think about the subject could ‘manufacture a philosophy of [the state]
for himself’.⁹⁷ This movement contended that that which ‘each individual allows
to rise out of his heart, emotion, and inspiration’ is the only truth that can be
revealed ‘about ethical institutions, especially about the state, the government,
and the constitution’.⁹⁸ These vain beliefs—including most notably the claim
that the people could be ruled by a communal spirit in which the genuine impe-
tus for ‘the discharge of public business comes from below, from the people
itself . . . united by the holy chain of friendship’—is for Hegel ‘the quintessence
of shallow thinking’.⁹⁹ If romantics triumph, the idea of political right would be
given over ‘to the subjective accident of opinion and caprice’, not least because the
‘special mark which it [romanticism] carries on its brow is the hatred of law’.¹⁰⁰
But Hegel is equally critical of the formalities and abstractions of Kant’s teach-
ing. He argues that it is precisely because philosophy is an exploration of the
rational that it involves ‘the apprehension of the present and the actual, not the
erection of a beyond, supposed to exist, God knows where, or rather which exists,
and we can perfectly well say where, namely in the error of a one-sided, empty,
ratiocination’.¹⁰¹ This line of argument leads Hegel to his famous double-dictum
(Doppelsatz): ‘What is rational is actual and what is actual is rational’.¹⁰² The
first proposition conveys the sense that the abstract ideals we appear to hold in
contrast to the real world are essentially reconstructions of reality in the intel-
lectual realm,¹⁰³ while the latter suggests that the modern political world has
a rational structure that is susceptible of scholarly analysis. We must avoid one
potential misunderstanding: by ‘actuality’ Hegel means a synthesis of essence
and existence.¹⁰⁴ He is not arguing that what simply exists is rational; nor does
it imply that if it does exist it is immune from criticism. His argument is that a
philosophical investigation must seek to recognize reason in the real world, and
not to construct abstract ideals that exist only in the philosopher’s head. Public
⁹⁵ Ibid, 3–4. ⁹⁶ Ibid, 7. ⁹⁷ Ibid, 5. ⁹⁸ Ibid. ⁹⁹ Ibid, 6.

¹⁰⁰ Ibid, 6, 7. ¹⁰¹ Ibid, 10. ¹⁰² Ibid.
¹⁰³ ‘I have remarked that even Plato’s Republic, which passes proverbially as an empty ideal, is in
essence nothing but an interpretation of the nature of Greek ethical life’: ibid, 10.
¹⁰⁴ If we say of a statesman who fails to achieve his aims that he is not a real statesman, then the
term ‘real’ is being used in a way similar to what Hegel calls ‘actual’. The statesman holds office but
lacks the qualities that are constitutive of what statesmanship ought to be.
law, it can be surmised, exhibits a form of rationality, by which we mean that its
institutions and practices are shaped into an ordered intelligible whole that is
capable of being understood and analysed as such.
The science of political right is therefore altogether different from the exercise of
devising a theory of the state as it ought to be. The insight which such a scientific
inquiry might contain ‘cannot consist in teaching the state what it ought to be;
it can only show how the state, the ethical universe, is to be understood’.¹⁰⁵ The
task of this science is ‘to comprehend what is, . . . because what is, is reason’.¹⁰⁶ If
philosophy tries to transcend the world as it is then it will be an exercise in imagi-
nation only—the formation of a world that exists only in the head of that phi-
losopher. As a science of political right, insight is acquired ‘only when actuality is
already there cut and dried after its process of formation has been completed’.¹⁰⁷
Hegel argues that this science of political right is a product of modern thought
and his objective is to show how it functions as an autonomous discourse that is
to be grasped dynamically as a configuration that develops through its intrinsic
contradictions.
After this powerful Preface, Hegel opens the book with a clear statement of its
objective: ‘The subject matter of the philosophical science of right is the Idea of
right, i.e. the concept of right together with the actualization of that concept’.¹⁰⁸
For Hegel, the ‘Idea’ is more basic that ‘mere concepts’. Particular conceptual-
izations can be partial or false and Hegel also notes that the various shapes that
a concept ‘assumes in the course of its actualization are indispensable for the
knowledge of the concept itself’.¹⁰⁹ The general objective of the science of right
is thus ‘to develop the Idea . . . out of the concept, or, what is the same thing,
to look on at the proper immanent development of the thing itself’.¹¹⁰ Having
explained that by ‘Right [Recht, ie jus] . . . we mean not merely what is generally
understood by the word, namely civil law, but also morality, ethical life, and
world-history’,¹¹¹ Hegel then analyses the various forms of right in logical pro-
gression, starting from the simplest and most abstract and moving to the more
complex and concrete.
The Rechtsphilosophie thus starts with abstract right and its division into per-
sonality, property, contract, and tort. It then moves from abstract right to moral-
ity (Moralität) and its division into responsibility, welfare, and conscience. From
morality, Hegel turns to examine the forms of ethical life (Sittlichkeit), which
include the family, civil society, the state, and relations between states. This com-
prehensive scheme reflects the way freedom is actualized in the institutions and
practices of modern existence: abstract right is the sphere in which individuals
engage in mutual recognition of certain basic rights (property, contract); morality
¹⁰⁵ Hegel, above n 83, 11. ¹⁰⁶ Ibid. ¹⁰⁷ Ibid, 12–13. ¹⁰⁸ Ibid, §1.
¹⁰⁹ Ibid, §1R. ¹¹⁰ Ibid, §2.
¹¹¹ Ibid, §33A. In §29 Hegel also uses ‘right’ as a technical expression denoting ‘an existent
[Dasein] . . . embodying free will’. On this usage, see Wood, above n 67, 71–73.
is concerned with duties that individuals possess with respect to one another;
and ethical life is the sphere in which, through evolving social practices, ‘moral’
persons holding ‘abstract rights’ make concrete determinations of the good.
Although my focus will be on the concept of political right expressed through the
state, the three main moments of right should first be sketched.¹¹²
Hegel refers to the family as a form of ethical life in its natural or immediate
phase. This form of life expresses ‘particular altruism’, since it is within the struc-
ture of a particular family grouping that one is willing to care for others.¹¹³ Civil
society, by contrast, is a form of ethical life ‘in its division’; it expresses what Hegel
calls ‘universal egoism’ or ‘universality of abstract rights’. In this sphere, which
finds its most typical form in economic interaction, everyone acts in accordance
with their perceived self-interest. This is where individuals treat others as a means
to their own ends, though even here some recognition of being involved in a
common undertaking is evident.¹¹⁴ Finally, there is the state, the sphere in which
I relate to everyone not out of self-interest but from solidarity. The type of rela-
tionship this form of ethical life expresses is that of ‘universal altruism’ and, as
we have seen, this is how Hegel comes to refer to the state as ‘the actualization of
freedom’.¹¹⁵ When Hegel says that the ‘basis of the state is the power of reason
actualising itself as will’, however, he emphasizes that, when considering this idea
of the state, ‘we must not have our eyes on particular states or on particular insti-
tutions’ but only on the Idea itself.¹¹⁶
The critical insight that Hegel’s scheme reveals about the idea of right can be
derived from the distinction he draws between subjective morality (Moralität)
and the more general and more concrete notion of ethical life (Sittlichkeit).
Morality might regulate conduct between individuals as individuals but since
it provides a general formula without specifying content it is, he argues, ‘an
empty formalism’ that reduces ‘the science of morals to the preaching of duty for
duty’s sake’.¹¹⁷ Only when this broader sense of the ethical life of a community
is invoked—where people relate to one another not as individuals but as mem-
bers of a community—can content be supplied. This rationality reaches its height
only in the state, since in the family it is submerged under love and sentiment and
in civil society it manifests itself as individual self-interest. Only in the state can
reason assume the level of reflexive self-consciousness.
The unfolding of this argument reveals the dialectical element of Hegel’s
thinking: the development of right through its various forms and conceptions.
¹¹² For an incisive analysis of the unfolding of these moments, see Paul Franco, Hegel’s Philosophy
of Freedom (New Haven, CT: Yale University Press, 1999), chs 6–8.
¹¹³ Hegel, above n 83, §§158–181. ¹¹⁴ Ibid, §§182–256, esp §184, §255.
¹¹⁵ Ibid, §§257–360, esp §258R. ¹¹⁶ Ibid, §258A.
¹¹⁷ Ibid, §135R. See further §135A: ‘While . . . the outlook of Kant’s philosophy is a high one
in that it propounds a correspondence between duty and rationality, still we must notice that this
point of view is defective in lacking all articulation’. On ‘the emptiness of the moral law’, see Wood,
above n 67, 154–173.
This is often presented by commentators as a ‘vulgar dialectic’ that is located in
the triad of thesis, antithesis, and synthesis: thesis expresses the positivization of
abstract right (in personality and property) entailing a liberation from relations
of personal dependency; antithesis expresses the various conflicts of interests that
property owners encounter in society; and synthesis is achieved with the forma-
tion of a state that operates to reconcile these conflicts in the public interest. But
this is not Hegel’s own conception.¹¹⁸
Hegel’s formulation maintains generally that ‘our thinking has an inherent
tendency to go beyond every limit, and thus to undermine or overthrow itself’
and that, by pushing beyond its limits, thought ‘turns into its opposite, resulting
in a contradiction’.¹¹⁹ Although this tendency might appear to frustrate under-
standing, he argues that such contradictions cannot be avoided. Consequently,
the way to deal with dialectical paradoxes ‘is not to suppress them, but to sys-
tematize them’.¹²⁰ As Wood puts it, ‘if you become master of them, they can
do positive philosophical work for you’.¹²¹ For Hegel, the higher dialectic is the
movement of right, whereby ‘the concept develops out of itself’ as a ‘purely imma-
nent progress’.¹²² The task of philosophy is to consider the development of right
rationally, which ‘means not to bring reason to bear on the object from outside
and so to tamper with it, but to find that the object is rational on its own account’;
this involves the bringing to consciousness of ‘this proper work of the reason of
the thing itself’.¹²³ For Hegel, the dialectic is the continuing drama of the human
struggle for freedom.¹²⁴
The science of right thus becomes both historical and progressive. It is histor-
ical because right takes a positive form ‘through the particular national character
of a people, its stage of historical development’.¹²⁵ It is progressive ‘because a sys-
tem of positive law must necessarily involve the application of the universal con-
cept to particular . . . characteristics’ and this leads in turn to the subsumption of
the particular under the universal.¹²⁶ The movement is from simple and abstract
to complex and concrete by a process of overcoming (Aufhebung) such partial
¹¹⁸ See Wood, ibid, 3–4: ‘it is never used by Hegel . . . the use of [this] terminology to expound
the Hegelian dialectic is nearly always an unwitting confession that the expositor has little or no
firsthand knowledge of Hegel’.
¹¹⁹ Wood, ibid, 2. ¹²⁰ Ibid. ¹²¹ Ibid. ¹²² Hegel, above n 83, §31.
¹²³ Ibid, §31R.
¹²⁴ But note also Wood, above n 67, 4: ‘At the pinnacle of the system is the “Idea”—thought’s
tendency to actualize itself by going outside itself. Hegel associates the Idea with the ontological
proof for God’s existence, since the Idea exhibits the capacity of the highest thought directly to
demonstrate its own existence. But the Idea also represents, in religious terms, God’s creation of
the world’. Cf Hegel, above n 83, §32A: ‘The Idea must further determine itself within itself con-
tinually, since in the beginning it is no more than an abstract concept. But this original abstract
concept is never abandoned. It merely becomes continually richer in itself . . . the concept remains
the soul which holds everything together and attains its own proper differentiation only through
an immanent process’.
¹²⁵ Hegel, ibid, §3. ¹²⁶ Ibid.
formulations of right.¹²⁷ In accordance with the Hegelian dialectic, political

right can be understood as the quest for freedom.
Viewed dialectically, it can then also be seen that the imposition of a limit on
the exercise of abstract right becomes a necessary element of the realization of
freedom. Will achieves its true realization only in the state. Duty may be ‘a restric-
tion on the self-will of subjectivity’ but it ‘is not a restriction on freedom, . . . only
on freedom in the abstract, i.e. on unfreedom’.¹²⁸ Duty ‘is the attainment of our
essence, the winning of positive freedom’.¹²⁹ By contrast, the problem of abstrac-
tion and formalism is that it can lead to the privileging of one instantiation of
right. Hegel offers as a particular illustration the case of the French Revolution
where the preponderance of abstract and universally formulated claims generated
great indeterminacy, which caused extensive antagonism, and ultimately led to
the Revolution consuming itself.¹³⁰ Hegel even invokes abstract right to assist in
the formulation of the radical argument that ‘in independent self-certainty, with
its independence of knowledge and decision, both morality and evil have their
common root’.¹³¹ Evil, he is suggesting, can result when the moral point of view,
abstractly formulated and no longer anchored in social practices, is given pre-
eminence within the system of right.¹³²
Political right, properly conceived, is thus realized only within the state as
Sittlichkeit. This claim often causes concern since ‘Hegel’s étatisme allegedly
identifies freedom with obedience to the police’.¹³³ But, as Smith explains, this
state is a Rechtsstaat in which arbitrariness and caprice are eliminated from its
workings, the conditions that make possible modern freedoms of speech, associa-
tion, expression are established, and there is a growing civility, ‘the deepening
of a recognition and respect for the wishes and ways of life of others’.¹³⁴ Right is
enacted in law but, because ‘law is the reason of the thing’,¹³⁵ a tension is formed
¹²⁷ See ibid, §141R: ‘The right and the moral cannot exist independently; they must have the
ethical as their support and foundation, for the right lacks the moment of subjectivity, while
morality in turn lacks that moment alone, and consequently both the right and the moral lack
actuality by themselves. Only the infi nite, the Idea, is actual’.
¹²⁸ Ibid, §149A. ¹²⁹ Ibid.
¹³⁰ Ibid, §5A. See further, GWF Hegel, Phenomenology of Spirit [1807] AV Miller (trans)
(Oxford: Oxford University Press, 1977), 355–363.
¹³¹ Ibid, §139R.
¹³² See further Robert Fine, Philosophical Investigations: Hegel, Marx, Arendt (London:
Routledge, 2001), 39: ‘Hegel’s argument is provocative and radical. It is that evil is rooted not so
much in the suppression of morality or in its subordination to instrumental rationality, but in the
moral point of view itself or more precisely in the elevation of the moral point of view to a supreme
status within the system of right as a whole. The moral point of view is a creature of our age. Born
of abstract right, it surpasses the limitations of private property and individual personality in the
sphere of self-reflection and self-determination and so reaches the “higher ground” of freedom.
What Hegel argues, however, is that on this higher ground where morality prevails, there are also
sown the seeds of something far more troubling: the dark clouds of a thoroughly modern barbarism
to come’.
¹³³ Steven B Smith, ‘What is “Right” in Hegel’s Philosophy of Right?’ (1989) 83 American
Political Science Review 3–18, 8.
¹³⁴ Ibid. ¹³⁵ Hegel, above n 83, Preface, 7.
between the ‘thing’ (‘positive law as the embodiment of the determinations of
right’) and its reason (the recognition that ‘these determinations form a necessary
series, developing by the inner necessity of thought itself’).¹³⁶ Sittlichkeit is not
simply an empirical description of the laws that exist; though grounded in history
and positive law, it is a rational interpretation of what must exist for freedom to
be grounded.
VI. The Struggle for Recognition
For Kant, the authoritative law is the moral law. The moral law, an expression of
pure freedom, provides the condition of autonomy. Since we ought only to follow
a law that we have given ourselves, it might be said that in Kant’s scheme morality
stands opposed to legality. Fichte, by contrast, sought to allocate morality and
legality to two distinct spheres, and in doing so he created the preconditions for
the establishment of an autonomous science of political right. By taking Fichte’s
principle of mutual recognition as the driving force of his system, Hegel then
sought to transcend Kant’s opposition of morality and legality and to reconcile
these claims in a science of political right that was rooted in the ethical life of a
distinct people.¹³⁷ Rejecting abstract idealism (reason) and empiricism (history)
as independent claims to authority, Hegel linked reason and history dialectically
and advocated a concept of political right in which right retains an ideal aspect
but is grounded in a particular historical disposition.
Hegel might thus be said to have elaborated a concept of political right con-
sonant with that invoked by Rousseau in his less affirmative mode. In this vein,
Sittlichkeit can be recognized as a reformulation of Rousseau’s conception of
custom as ‘the State’s genuine constitution’,¹³⁸ and the struggle for recognition
can be seen to involve a reworking of Rousseau’s account of an evolving civility
that is provided in the second part of the Discourse on Inequality.¹³⁹ When Hegel
writes that virtue is not to be found simply in an individual’s conformity to ethical
order and that one becomes virtuous only when ‘this mode of behaviour is a fi xed
element of . . . character’,¹⁴⁰ is this not precisely what Rousseau argues about
¹³⁶ Ibid, 306 (translator’s notes).

¹³⁷ See Michael O Hardimon, ‘The Project of Reconciliation: Hegel’s Social Philosophy’ (1992)
21 Philosophy & Public Aff airs 165–195, 166: ‘Reconciliation is the main goal and central organ-
izing category of Hegel’s social philosophy’.
¹³⁸ Above n 9.
¹³⁹ See, eg, Rousseau, Discourse on Inequality, above n 17, 166: ‘As soon as men had begun
to appreciate one another and the idea of consideration had taken shape in their mind, everyone
claimed a right to it, and one could no longer deprive anyone of it with impunity. From here arose
the first duties of civility even among Savages, and from it any intentional wrong became an affront
because, together with the harm resulting from the injury, the offended party saw in it contempt for
his person, often more unbearable than the harm itself ’.
¹⁴⁰ Hegel, above n 83, §150A.
custom being writ in the ‘hearts of Citizens’?¹⁴¹ If the Rousseau of the Discourse
on Inequality can be understood to be demanding a more sociologically informed
account of political right, is this not in fact what Hegel delivers?
Hegel, it has been argued, was the first philosopher to take history seriously,
in the sense that he seeks to bring the ideal claims of right to bear on the devel-
opment of history as an organized whole.¹⁴² Where Kant separates the univer-
sal from every empirical determination, Hegel tries dialectically to bring theory
and practice into productive alignment. In place of the legal philosopher who
sketches an ideal that exists only in that jurist’s head and the legal practitioner
who simply wishes to know what the law of a particular state is, Hegel upholds
the image of the legal scientist who, while recognizing that ‘a study of positive law
and history must precede the philosophy of right’, seeks to discern ‘the meaning
of the facts the historian collects, and to discover the necessity at the heart of their
contingency’.¹⁴³ This gives us a powerful and influential image of the role of the
modern jurist.¹⁴⁴
One consequence of Hegel’s dialectical method is that the individual in itself
must be treated as an abstraction: the individual becomes real only in the unity
of the concrete universal, which for Hegel is ‘the people’.¹⁴⁵ This aspect of his
philosophy accentuates his difference with Kant: while Kant’s theory leads to
the promotion of cosmopolitan right for universal mankind, Hegel’s treats the
nation-state as the highest and most comprehensive expression of human action.
In Hegel’s philosophy, a people ‘has its own genius, its manner of existing for
itself, and thereby is even opposed to other peoples’.¹⁴⁶ This yields a rather differ-
ent account of international relations to that offered in Kant’s movement towards
‘perpetual peace’. Hegel highlights the uncertain status of international law as
being based on a moral ‘ought-to-be’ rather than an actual power, and explains
that war can even be viewed as the means by which a people affirms its freedom
and demonstrates its vitality.¹⁴⁷
¹⁴¹ See also Hegel, ibid, §151A: ‘Just as nature has its laws, and as animals, trees, and the sun
fulfi l their law, so custom (Sitte) is the law appropriate to free mind’.
¹⁴² Hannah Arendt, Th e Life of the Mind (New York: Harcourt, Brace, Jovanovich, 1977),
vol 2, 45.
¹⁴³ Knox, ‘Translator’s Notes’ to Hegel, above n 83, 306.
¹⁴⁴ See, eg, Rudolf von Jhering, The Struggle for Law [1872] John J Lalor (trans) (Chicago:
Callaghan & Co, 1915). Jhering (at 69–70) writes: ‘A concrete legal right exists only where the
conditions are to be found which the abstract principle of law has attached to its being. . . . Concrete
law not only receives its life and strength from abstract law, but gives it back in turn, the life it has
received’.
¹⁴⁵ On this argument see esp Axel Honneth, The Struggle for Recognition: The Moral Grammar of
Social Conflicts Joel Anderson (trans) (Cambridge: Polity Press, 1995), 12–16.
¹⁴⁶ Jean Hyppolite, Introduction to Hegel’s Philosophy of History Bond Harris and Jacqueline B
Spurlock (trans) (Gainesville: University Press of Florida, 1996), 52.
¹⁴⁷ See Hegel, above n 83, §324R: ‘War has the higher significance that by its agency . . . the
ethical health of peoples is preserved in their indifference to the stabilization of finite institutions;
just as the blowing of the winds preserves the sea from the foulness which would be the result of a
But does this mean, as Maletz puts it, that ‘the state never belongs to a whole
in which right governs and that history is finally the irrational but all-powerful
critic of every attempt at a rational politics’ ?¹⁴⁸ Hegel’s answer is that, since his
objective is not to reflect on what an individual dreams but to explain what rea-
son entails, one can only say: die Weltgeschichte ist das Weltgericht (the history
of the world is the judgment of the world).¹⁴⁹ Hegel carefully explains that this
does not mean that world history is ‘the verdict of mere might, i.e. the abstract
and non-rational inevitability of a blind destiny’.¹⁵⁰ World history, expressing a
‘dialectic of finitude’, recognizes the limitations and particularities of states and
peoples in the course of revealing the workings of reason in its ways.¹⁵¹ Justice
and virtue, power and vice, all have their place, but in world history we reach ‘the
point of view from which these things matter’.¹⁵² And so, in a direct answer to
Kant, Hegel contends that when it is asserted that politics must always yield to
morality ‘the doctrine propounded rests on superficial ideas about morality, the
nature of the state, and the state’s relation to the moral point of view’.¹⁵³
In Hegel’s analysis of world history, we see the culmination of the struggle for
recognition, a struggle that commenced with the realization that by virtue of
recognizing someone as a person we are obliged to treat them in a certain way. It
therefore is appropriate to conclude with some general reflections on the impor-
tance of the struggle for recognition in Hegel’s science of right. Commenting
on this aspect of Hegel’s philosophy, Taylor has argued that two general con-
sequences flow: first, that if personhood involves recognition then ‘the space of
evaluation of the person’s existence is intrinsically and inseparably a public space’;
and, secondly, that this kind of evaluation requires the development of a com-
mon language that arises in conversation between people (‘so that the language I
speak is not at first my language but our language’).¹⁵⁴ From these factors of pub-
licity and commonality, Taylor draws a powerful conclusion: that although we
crave recognition and are prepared to fight for it, ‘fighting over it is in itself a con-
tradictory action because, both the acknowledgement that we need recognition
and the media or language which sustains the common space of evaluation that
allows recognition has to be constituted by conversation between us’.¹⁵⁵ Conflict
requires community.
Taylor’s observations—together with one important adjustment he proposes
to Hegel’s scheme—are of central significance to the understanding of public
law as political right. His amendment flows from his observation that Hegel’s
prolonged calm, so also corruption in nations would be the product of prolonged, let alone “per-
petual” peace’.
¹⁴⁸ Donald J Maletz, ‘History in Hegel’s Philosophy of Right’ (1983) 45 Review of Politics
209–233, 218.
¹⁴⁹ Hegel, above n 83, §340. ¹⁵⁰ Ibid, §342. ¹⁵¹ Ibid, §§340–342.
¹⁵² Ibid, §345. ¹⁵³ Ibid, §337.
¹⁵⁴ Charles Taylor, ‘Hegel’s Ambiguous Legacy for Modern Liberalism’ (1988) 10 Cardozo Law
Review 857–870, 865.
¹⁵⁵ Ibid, 866.
view of the state is flawed because it is ‘powered by a fundamental concept of

subject/object identity, which he gets from Fichte, and which has some roots in
Rousseau’. This is the image of political society which has as its model ‘a kind of
unity of society which, in the end, gives no place to the agon, to competition, to
unresolveable differences’.¹⁵⁶ Taylor contends that Hegel’s portrayal of the state
provides an implausible account of the ways in which the dialectic of conflict
and community is played out in the modern world. Since this seems accurate,
it would appear that, only in this modified Hegelian scheme, are the basic ele-
ments of public law as political right set in place: the ‘public space’ of public law
is that which is needed for communication over matters of common existence;
political right is the language that has evolved through which we express issues
of dignity, respect, and recognition; the dynamic that drives the subject is the
tension between particular instantiations (positive law, Gesetz) and ‘the reason of
the thing’ (right, Recht); and this evolving dynamic relies on perpetual conflict
through shared consensus. Public law expresses a grammar of political conflict
that flows through a system of shared understanding.
¹⁵⁶ Ibid, 869.

6
Political Jurisprudence
In Part I, I explained how a line of European jurists, drawing on a common

Romanist inheritance and building on one another’s work, developed ‘modern’
ways of thinking about the nature of collective political existence. During the
main stage of this development, between the late-sixteenth and early-eighteenth
centuries, a break was made, first with the transcendent figure of a divine sover-
eign that represented the governing regime’s exteriority and then later with the
idea of a secular sovereign positioned at the apex of the governing order who
justifies its hierarchical form. These developments permitted the emergence of
the modern concept of sovereignty: this is sovereignty as the expression of the
principle of self-actualization of the public sphere.
In Part II, I have been trying to explain how these innovations became formal-
ized in juristic thought, through attempts to develop a science of political right.
In these articulations, humans are assumed to be free and equal beings who col-
lectively determine the nature of their political existence and who, as the ultim-
ate source of political authority, are conceived to be authors of the governing
regime under which they live. Since this principle of self-actualization is made
operational through the institution of law, the works of these jurists simultan-
eously provide us with an explanation of the law establishing and maintaining
the public sphere. This body of work provides the intellectual foundations of
public law.
Although the trajectory of this intellectual development can be sketched in a
coherent fashion, the way in which these ideas shaped the practices of particular
regimes is altogether more fuzzy. In some cases, we are dealing with a complex
evolutionary development, with modern ideas intermingling with older prac-
tices to form constitutional arrangements that are a mixture of ‘descending’ and
‘ascending’ governmental themes. This evolutionary momentum often leads to
the formation of parallel worlds of ancient and modern notions of governmen-
tal ordering, with the ancient ‘dignified’ façade of the constitution, replete with
ceremony and ritual, masking the operation of an underlying ‘efficient’ system
through which governmental practices alter to reflect the influence of modern
ideas. In many cases, a more dramatic shift occurs. This takes place at some crit-
ical moment when, triggered by the more or less complete breakdown in the old
regime, a modern constitutional framework is adopted. But even within this
158 Political Jurisprudence
modern settlement an alternative dualism invariably emerges: the formal con-

stitutional order now presents itself as a dignified version of the workings of gov-
ernment, concealing a shadowy side of government through which much of the
important technical work of modern government is processed. Constitutional
ordering contains both symbolic and instrumental aspects: it expresses the public
face that the state seeks to present to the world, while to varying degrees masking
the reality of how government actually works. Constitutional forms and govern-
mental practices operate in a relationship of tension.
The general point to be made is this: notwithstanding a coherent trajectory
of western constitutional thought, the actual experience of particular states is
varied. A family resemblance exists, but each regime expresses a thicker and more
specific cultural understanding of law and political right, revealing the denser
texture of public law as local knowledge. The relationship between theory and
practice is, in short, of such complexity as to render any general account of the
emergence of modern public law both partial and provisional.
This relationship between theory and practice severely complicates any
attempt to devise a general account of political right. It should also be noted
that, even without addressing the circuitous ways in which modern ideas came
to permeate governmental practices, ambiguities and controversies exist within
the modern theoretical edifice itself. It is to these that we must now turn. Many
of these ambiguities arise from discrepancies that arise in the characterization
of two related concepts that are situated at the core of these modern juristic
theories: power and liberty. But before coming directly to the power/liberty
dynamic as it functions in public law, we should first address the question of
why public law cannot be conceived as involving the perennial search for the key
to a science of political right. Rather than being treated as an explication of the
science of political right, public law should be recognized as an exercise in polit-
ical jurisprudence.
I. Public Law as Political Jurisprudence
Although the modern principle of self-actualization is operationalized through the

institution of law, the concept of law invoked is ambiguous. It is axiomatic that,
since the public realm now presents itself as autonomous, it cannot be anchored
either in divine law or natural law. The public realm must function according to
laws we have given ourselves. In this sense, all law is posited law. From this pos-
ition, it may be tempting to follow Hobbes and argue that law means simply the
command of the established law-making authority. While this gives us a precise
concept of law, it does so only at the price of maintaining that the conditions
under which that law-making authority is exercised are matters of politics that
lie beyond juristic knowledge. If the only question of legal interest is whether or
not a particular precept is a valid rule of an already-constituted legal order, then
the adoption of the internal point of view of a legal practitioner in the system is
fine. But if the objective is to apprehend the legal order as something ‘inherently
rational’, then legal positivist methods are altogether inadequate. For the purpose
of understanding how the authority of a governing order can be grasped in legal
thought, positive law must be differentiated from political right.
The science of political right expresses the conviction that there is a mode
of right-ordering of public life that free and equal individuals would rationally
adopt. This is a juristic concept, not least because the idea of ‘right-ordering’ must
include some account of the source of authority of the ‘laws’ that establish the
state and its various agencies of government. Indeed, if one accepts that law is not
the text as such but ‘the reason of the thing’, then it is only through the concept
of political right that meaning and purpose can be given to the basic laws of
governmental ordering. Political right might thus be conceived to be the ‘true’
law of the state. Public law—the law of governmental ordering—becomes the
expression of political right.
There are, however, major difficulties with this formulation. One reason is that,
as is indicated in Chapter 3, the identification of a single and authoritative notion
of right-ordering seems implausible. Further, as has been shown in Chapters 4
and 5, a variety of influential theories, each claiming to have discovered the true
basis of the science of political right, have been postulated. These are competing
theories, and since there seems no prospect of discovering the Archimedean point
from which objective authority can be determined,¹ the search for a science of
political right becomes a journey without end. In part, this is because political
right offers a conceptual solution to a set of recurrent issues in political experi-
ence, and a conceptual answer to a practical question offers no solution at all.
This, however, is not the only reason. A prior difficulty concerns that of specify-
ing the purposes of public law. Identification of such purposes is bound up with
specification of the character of the modern European state.
As has already been intimated, the character of the state is such that it is
‘not a model from which copies may be struck off ’, since, although making
use of common elements, each regime tends to put them together in unique
ways.² In specifying its character, Oakeshott disposes of several ‘well-worn
¹ See Thomas Paine, ‘Rights of Man’ in his Rights of Man, Common Sense and other Political
Writings [1791] Mark Philp (ed) (Oxford: Oxford University Press, 1995), 83–331, 210: ‘What
Archimedes said of the mechanical powers, may be applied to Reason and Liberty: Had we, said he,
a place to stand upon, we might raise the world ’. See further, David Gauthier, Morals by Agreement
(Oxford: Oxford University Press, 1987), 233: ‘Moral theory offers an Archimedean point analysis
of human interaction. But what is an Archimedean point? The reader will recall that Archimedes
supposed that given a sufficiently long lever and a place to stand, he could move the earth. We may
then think of an Archimedean point as one from which a single individual may exert the force
required to move or to affect some object. In moral theory, the Archimedean point is that position
one must occupy, if one’s own decisions are to possess the moral force needed to govern the moral
realm. From the Archimedean point one has the moral capacity to shape society’.
² Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human
Conduct (Oxford: Clarendon Press, 1975), 185–326, 198. See above ch 3, 102.
analogies’, such as the idea that the state is like a family or an organism; these
‘soon revealed themselves to be inadequate and implausible’. But he does sug-
gest that there are ‘two ideas, each promising enlightenment and each proving
itself to be capable of absorbing a whole direction of thought, round which
European reflection on this matter has continuously circled since the fi fteenth
century’.³ These ideas, derived from two different modes of human association
expressed in Roman law, are those of the state as societas (partnership) and
universitas (corporation).
Oakeshott’s argument is not that each of these ideas can be read as alternative
accounts of the nature of the state: although they are irreducible and cannot be
combined, they may be understood as the ‘specification of the self-division of this
ambiguous character’. The state can be grasped as ‘an unresolved tension between
the two irreconcilable dispositions represented by the words societas and univer-
sitas’.⁴ This is of fundamental importance because the tension he identifies is not
only the source of the ambiguity pervading our understanding of the nature of
government and the vocabulary of political discourse; it is also the source of our
ambiguity over public law as political right. We can advance our understand-
ing of the character of political right by unravelling the meaning of these two
expressions.
Societas is a mode of association that juristically ‘was understood to be the
product of a pact or agreement, not to act in concert but to acknowledge the
authority of certain conditions in acting’. The tie is not that of engagement in a
common enterprise or the pursuit of a common substantive purpose; it is ‘a for-
mal relationship in terms of rules, not a substantive relationship in terms of com-
mon action’. The members of the association each remain free to pursue their
own interests or even to form other groups to promote common objectives and
they relate to one another as socii simply ‘in the common acknowledgement of the
authority of rules of conduct indifferent to the pursuit or the achievement of any
purpose’.⁵ Oakeshott argues that a societas expresses a moral relationship in which
the conditions of association are specified by a system of law. There will therefore
be judicial office-holders who settle disputes in terms of the law and there may be
a ruler. But the office of the ruler, Oakeshott emphasizes, is consonant with the
nature of the association:
[T]he ruler of a state when it is understood as a societas is the custodian of the loyalties of
the association and the guardian and administrator of the conditions which constitute
the relationship of socii. He cannot, for example, be the owner or trustee of its property,
because it has none; and he is not the manager or director of its activities, because there
are no such activities to be managed. This ruler is a master of ceremonies, not an arbi-
ter of fashion. His concern is with the ‘manners’ of convives, and his office is to keep
the conversation going, not to determine what is said. Thus, a state understood in terms
³ Ibid, 198–199. ⁴ Ibid, 200–201. ⁵ Ibid, 201.

of societas is . . . a civitas, and its government (whatever its constitution) is a nomocracy
whose laws are to be understood as conditions of conduct, not devices instrumental to the
satisfaction of preferred wants.⁶
A universitas is, by analogy, easier to comprehend. The corporate mode of asso-
ciation is one in which the corporate body acquires some of the qualities attribut-
able to persons (eg, ability to contract or acquire proprietary rights). Thus, the
corporation aggregate is an association of persons established to pursue some
common purpose, and it is generally created by an act of authority that endows
the corporation with certain privileges and powers. The character of the state
intimated by the analogy of the corporation aggregate ‘is nothing more abstruse
than that of a many of intelligent agents become one in the joint pursuit of a
common substantive purpose and in the enjoyment of the means necessary for
undertaking the managerial decisions entailed’. They therefore may make rules
that are felt to be instrumental to this common undertaking and, since the ‘land
and natural resources of its territory, and perhaps even the talents of its members,
are corporate property’, they are authorized to make rules that regulate the own-
ership and exploitation of these resources. Government in this image ‘may be said
to be teleocratic, the management of a purposive concern’.⁷
These two modes of association offered useful guides to reflection when, during
the sixteenth century, consideration turned to thinking about the nature of the
state. There was much to suggest that it might be understood in terms of societas:
‘the emergent realm was neither a landed estate, nor a commercial enterprise (cus-
toms dues were not items in a design to direct traders into more profitable undertak-
ings), nor a military organization but an association in terms of legal relationships’.
And the ruler was not ‘the lordly proprietor of a domain’, nor was he ‘concerned to
exercise an undefined moral and prudential guardianship over the lives . . . of his
people’. Rather, he was ‘a ruler of subjects, a defensor pacis, whose office was to per-
form certain public duties, distinguished (though still with some difficulty) from
his private concerns’.⁸ The realm was recognized as ‘an association in terms of law,
lex facit regnum’ and was ‘on the way to becoming a “sovereign” civil association’
and the ruler’s authority being seen to be analogous to that of a judge.⁹
At the same time, Oakeshott does not deny the powerful influence of the anal-
ogy of universitas, including the corporate privileges of ‘perpetual succession, the
right to make rules for itself, the corporate ownership of property, and the right to
identify its corporate decisions by a common seal’.¹⁰ Also, rulers sought to bolster
their status by positioning themselves as ‘the residuary legatees of a notionally
all-embracing ecclesiastical authority’ and assuming powers associated with the
⁶ Ibid, 202–203. On the notion of a civitas, which provides the key to Oakeshott’s argument
that societas is a moral relationship, see his essay ‘On the Civil Condition’ in On Human Conduct,
above n 2, 108–184.
⁷ Oakeshott, ‘On the Character of a Modern European State’, above n 2, 205–206.
⁸ Ibid, 210. ⁹ Ibid, 208, 213. ¹⁰ Ibid, 215.
Church, including plenitudo potestas and the idea of rulership as a jurisdiction that
entailed custody over moral and spiritual welfare of a community.¹¹ The reality is
that, while recognized as being conceptually distinct, rulership and lordship were
never entirely separated in practice.
Oakeshott argues that most of the writers from the late-sixteenth century
onwards who recognized the state as a certain mode of association and who then
attempted ‘to theorize it in terms of its postulates’ have, notwithstanding dif-
ferences on many other matters, identified the state in terms of societas.¹² But
although clearly specified in thought, this mode cannot be said to have triumphed
in practice. Here, the ‘unpurged relic of “lordship” hidden in the office of mod-
ern monarchs and which the successors to kings inherited and have shown no
inclination to relinquish’ has been exploited and the modern European state rec-
ognized as a domain, its territory an estate, its government a form of estate-man-
agement, and its laws as rules that are instrumentally orientated to the success of
the enterprise.¹³ Oakeshott attributes this movement mainly to the governmen-
tal response to the social question, what he calls ‘the problem of “the poor” ’.¹⁴
In trying to address this problem, governments have called for a command of
resources, have modified laws by making provision for substantive benefits, have
promoted administrative regulation at the expense of judicial control, and have
overlaid civil rule with a notion of teleocratic rule. Consequently, ‘to govern such
a state was recognized to be a managerial and a tutorial undertaking and not
merely an engagement of civil prudence’.¹⁵
The circumstantial development of the modern European state has thus bred
not one but two obliquely opposed characters, each of which denotes a particu-
lar mode of association: civil association and enterprise association. And the one
thing these two understandings have in common is ‘the recognition of a state as
an exclusive association: no man may be a member of two such associations’.¹⁶
These have become the ‘two well-trodden paths, upon which many minds have
gone up and down, each leading to a destination, a theoretical understanding
more or less exactly specified: the one (signposted societas civilis: imperium) to
a formal condition, and the other (marked universitas: dominium) to a substan-
tive condition’.¹⁷ Since these two modes have not always been acknowledged,
there has been much confusion on the way.¹⁸ But even when such confusion is
¹¹ Ibid, 224.
¹² Ibid, 251. The most accomplished of these, he suggests (ibid, 252), are Bodin, Hobbes,
Spinoza, Kant, Fichte, and Hegel.
¹³ Ibid, 268. See, eg, José Ortega y Gasset, The Revolt of the Masses (New York: WW Norton,
1932), 170: ‘The State is always, whatever be its form . . . an invitation issued by one group of men to
other human groups to carry out some enterprise in common’.
¹⁴ Oakeshott, ‘On the Character of a Modern European State’, above n 2, 277.
¹⁵ Ibid, 298. ¹⁶ Ibid, 313. ¹⁷ Ibid, 317–318.
¹⁸ Ibid, 318: ‘And the confusion has been increased by jokers of both persuasions who, in
deference to the vulgar, have altered the signposts to read: Right, Left; Reaction, Progress;
Stagnation, Development; Poverty, Affluence; Conservative, Liberal; Cul-de-Sac, Open Country;
Liberty, Security; Authority, Liberty; Conflict, Peace; Competition, Co-operation; Unconcern,
alleviated, we must still recognize the conflict: these modes are irreconcilably
antagonistically aligned.
Although some writers are tempted to portray one mode as dominant and the
other as recessive, or even to treat the state as purposive association as an entirely
debased form, this is not Oakeshott’s conclusion. He suggests that this ambigu-
ous situation may reflect the existence within human nature of two equally pow-
erful but contrary dispositions: the desire to be autonomous and the desire to be
a participant in a common venture. And if this tension between freedom and
belonging is in fact the situation, then perhaps ‘the most one can do is to offer
these terms as the most effective apparatus for understanding the actual com-
plexity of the state’.¹⁹
If, as it appears, Oakeshott’s account of the nature of the modern state is cor-
rect, what are its implications for seeking to understand the character of pub-
lic law? As Oakeshott notes, what must be explained is not simply the existence
of each of these two characterizations in politico-legal thought, ‘but a political
imagination which is itself constituted in a tension between them’. Modern
public law thought is ‘a polarized consciousness’, the images of law expressed in
societas and universitas constitute its poles, and ‘all other tensions (such as those
indicated in the words “right” and “left” or in the alignments of political parties)
are insignificant compared with this’.²⁰
The pattern of state formation corroborates this judgment. It is therefore
not surprising to see the development of the post-revolutionary French state
being analysed in terms of a confl ict between a corporate civil society and
an anti-associationist state,²¹ the German theory of Staatsrecht reaching its
culmination in the attempt to propound a two-sided doctrine (Zwei-Seiten
Lehre) of the state,²² and even the non-juridified development of British public
law being explained in terms of an evolving tension between normativist and
functionalist accounts of the subject.²³ Many leading studies of twentieth-
century public law thought engage directly with this tension. These include
Mortati’s constitutional analysis that moves beyond the formal framework of
norms to embrace a ‘material constitution’ that is an expression of the insti-
tutional arrangement of social forces,²⁴ Fraenkel’s study of the Nazi dictator-
ship showing that, through law, the state divided into two co-existing orders
of the normative state (Normenstaat, structured by statutes and court orders)
and the prerogative state (Maßnahmenstaat, structured in accordance with the
Responsibility; Indifference, Compassion; Apathy, Brotherly Love; Hell, Heaven or Heaven,

Hell, etc. And even totally irrelevant designations have been posted, such as: Democracy,
Authoritarianism, Capitalism, Bureaucracy, Pluralism, Centralism, etc’.
¹⁹ Ibid, 323. ²⁰ Ibid, 320.
²¹ See Pierre Rosanvallon, L’Etat en France de 1789 à nos jours (Paris: Le Seuil, 1990).
²² Georg Jellinek, Allgemeine Staatslehre (Berlin: Springer, 3rd edn, 1921).
²³ See Martin Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992).
²⁴ Costantino Mortati, La Costituzione in Senso Materiale (Milan: Guiff rè, 1940).
exigencies of party rule),²⁵ Hayek’s analysis of the modern constitutional state
divided between nomocratic and teleocratic ordering,²⁶ and Habermas’ argu-
ment that the tension between the idealism of constitutional law and the mate-
rialism of administrative law is manifested by a drifting apart of philosophical
and empirical approaches to law.²⁷
This fissure running through the subject has profound implications for our
understanding of the science of political right. If the science is not to amount
merely to a normative theory of how things ought to be and instead aims to be a
positive theory that reveals the postulates of the evolving practice, then, in a strict
sense, a science of political right is unattainable. The history of public law reveals
the existence of a range of theories, each of which exposes distinctive features
of the practice. While some of these characteristic features can be formulated
in absolute and universal terms, others, especially the self-imposed limitations
needed to sustain the generation of the practice, are conditional and local. These
features amount to distinctive expressions of the polarities of a bifurcated dis-
course. The disjuncture they express can be neither eliminated nor reconciled,
but only negotiated. This negotiation does not itself amount to the explication of
right as such: it involves the exercise of prudential judgment. Rather than treat-
ing public law as the unfolding of some science of political right, then, public law
should be understood to involve an exercise in political jurisprudence, whose task
is to negotiate between the various conflicting accounts of political right that
form part of its evolving discourse.
Our understanding of this idea of public law as political jurisprudence can
be advanced by examining the tensions of power and liberty—the mutuality
of dependence and independence—that lie at its core. This issue, introduced in
Chapter 3, concerns the question first posed directly by Spinoza: how, if sover-
eign power is unbound by laws, is the promotion of the absolute authority of the
state compatible with the realization of liberty?²⁸
II. Power
Spinoza captured something essential about the nature of political power when
he drew the distinction between potestas (the rightful power of rule) and potentia
(the actual power of government to achieve its objectives). This distinction now
has a degree of familiarity, since through it we can also glimpse one aspect of
²⁵ Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship EA Shils (trans)
(New York: Oxford University Press, 1941).
²⁶ FA Hayek, Law, Legislation and Liberty: Vol.1 Rules and Orders (London: Routledge Kegan
Paul, 1973).
²⁷ Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy William Rehg (trans) (Cambridge: Polity Press, 1996), 38–41.
²⁸ See ch 3, above, 102–106.
II. Power 165
the fissure that Oakeshott identifies. Being a rule-generated authority, potestas

commends itself as an elaboration of the mode of association known as societas,
and potentia, referring to the resources that governments need to realize their
purposes, has teleocratic associations that tie it to the state as universitas. When
Spinoza brings these two concepts of power into alignment with his argument
that right flows from power, we begin to see a practical way in which the two clus-
ters of ideas represented by societas and universitas can be drawn together as an
exercise in political jurisprudence. Its implications can be seen once this distinc-
tion is situated within the frame of contemporary debates in the social sciences on
the nature of political power.
There is a tendency within modern social science to conceptualize power sim-
ply as a general capacity of action. Operating under the influence of a causal
model, power is defined as an ability to achieve intended effects. Since this con-
cept of power is concerned with the ability to get individuals to act in a particular
way, especially by invoking the threat of a sanction, it has come to be associated
with coercion and domination.²⁹ It is largely because of the prevalence of this
concept of political power that many analysts adopt a highly reductionist view of
the state: the state is treated simply as the arena in which conflicts between the
predominant power interests in society are played out.
Expressing dissatisfaction with this reductive method, some social scientists
have offered a more nuanced account of power. In his major study of the historical
development of the state, for example, Mann presents an elaborate sociological
analysis of political power operating within the state.³⁰ Promoting an autono-
mous theory of the state, a distinction is drawn between two types of power,
which he calls despotic power (power over) and infrastructural power (power
through). Mann argues, in orthodox fashion, that despotic power is extensive
when rulers are able to act coercively and without legal-institutional constraint.
The innovation comes from his deployment of the term ‘infrastructural power’.
Infrastructural power refers to the ability of the state to penetrate society and
organize social relations (though by ‘the state’ here he means the office of govern-
ment). It expresses the power of the state to assess and tax income and wealth, to
gather and store information about individuals, to regulate economic activity,
and to penetrate everyday life in many different ways. Mann argues that infra-
structural power is a form of state power that has been extensively developed in
modern industrial societies.
²⁹ See, eg, Max Weber, ‘The Profession and Vocation of Politics’ in his Political Writings Peter
Lassman and Ronald Spiers (eds) (Cambridge: Cambridge University Press, 1994), 309–369, esp
310–312; Talcott Parsons, ‘On the concept of political power’ in his Sociological Theory and Modern
Society (New York: Free Press, 1969), 352–404; Steven Lukes, Power: A Radical View (London:
Macmillan, 1974).
³⁰ Michael Mann, The Sources of Social Power, Volume 1: A History from the Beginning to 1760
AD (Cambridge; Cambridge University Press, 1986); Michael Mann, The Sources of Social Power,
Volume 2: The Rise of Classes and Nation-States (Cambridge; Cambridge University Press, 1993).
This concept of infrastructural power adds an additional layer of complexity
to the idea of the state. It enables us to offer a more sophisticated account of what
it means to talk about a ‘strong’ state. Mann, for example, argues that modern
democratic states tend to be ‘despotically weak’ but ‘infrastructurally strong’.³¹
This suggests that elaborate constitutional frameworks, such as those which sepa-
rate legislative and judicial powers from the governmental power, may constrain
the ‘despotic’ powers of government but, by so doing, they increase the sum total
of governmental power. Other historical studies have drawn related messages.
Thus, it has been argued that the restraints imposed on the English crown after
the Revolution of 1688 provided a platform of stability and expectation that
directly stimulated the economic growth that fuelled the industrial revolution.³²
It has similarly been shown that, although democracies are today less likely to
engage in war, they are—largely because of their ability successfully to mobilize
their populations for the war effort—more likely to win wars.³³
From the perspective of political jurisprudence, Mann’s concept of infrastruc-
tural power constitutes a reformulation of the dynamic that Bodin first identified
when he coined the adage ‘less means more’.³⁴ Constitutionalization of (despotic)
power enhances the sum total of state power. Further, when we examine more
carefully the sources of infrastructural power that Mann identifies, we see that
they conform precisely to the types of power that Spinoza labels potentia. Mann’s
account closely parallels Oakeshott’s argument that modern European govern-
ments, ‘from having acquired a large share . . . of the ability to control men and
things’, have greatly extended their potentia.³⁵ The power of potentia, Oakeshott
argues, arises because modern governments ‘have at their disposal an apparatus
of inquiries, records, registers, files, dossiers, indexes, passports, identity cards,
licences, etc’, ‘enjoy settled and guarded frontiers’, have ‘extensive and organized
civil and police services’, have ‘efficient techniques for the collecting revenue’,
have ‘control over the issue of money’, and so on.³⁶ What Mann refers to as infra-
structural power is accurately identified by Oakeshott as potentia.
³¹ Michael Mann, ‘The Autonomous Power of the State: its Origins, Mechanisms and Results’
(1984) 25 Archives Européenes de Sociologie 185–213, 190.
³² Douglas North and Barry Weingast, ‘Constitutions and Commitment: The Evolution of
Institutions Governing Public Choice in Seventeenth-Century England’ (1989) 49 Journal of
Economic History 803–832. See further, Steve Pincus, 1688: The First Modern Revolution (New
Haven, CT: Yale University Press, 2009), ch 15.
³³ David A Lake, ‘Powerful Pacifists: Democratic States and War’ (1992) 86 American Journal of
Political Science 24–37. Lake’s article concludes that ‘democracies are less likely to fight wars with
each other’ and that they ‘are also more likely to prevail in wars with autocratic states’ (at 34). The
reason is that autocracies tend to be more expansionist while democracies devote more resources to
security. And since democracies also enjoy greater levels of social support for their policies, they are
able more effectively to mobilize, and they thus tend to win wars.
³⁴ See above chs 2, 60 and 3, 95.
³⁵ Michael Oakeshott, Lectures in the History of Political Thought (Exeter: Imprint Academic,
2006), 370.
³⁶ Ibid, 370–371.
II. Power 167
The emergence of potentia in such accounts of the workings of power in the

modern state acquires a new dimension once Foucault’s innovative studies of
power, domination, and government are brought into the frame. Foucault’s anal-
yses of the techniques and rationalities of modern government led him to claim
that an entirely new type of governmental power is created, attributable to the
emergence of a new phenomenon which he calls ‘the problem of population’.³⁷
Arguing that the problem of population has arisen only since the eighteenth cen-
tury, he suggests that this is largely a consequence of the development of the tech-
nologies of political arithmetic (statistics) and political economy, or what might
be called the arts of government. Foucault devises a new term to express this type
of power: gouvernmentalité. But what Foucault calls gouvernmentalité seems, on
its face, to be analogous to the workings of potentia.
Rather than treating the dynamic between potestas and potentia (gouvernmen-
talité) as operating through the workings of political jurisprudence, however,
Foucault argues that the logic of potentia is completely different to that of potestas.
Potestas is concerned with the law-making power of the sovereign (Foucault says
‘sovereignty’ but for our purposes this is confusing); its characteristic form is to
prohibit.³⁸ The law works ‘in the imaginary’, he suggests, ‘since the law imagines
and can only formulate all the things that could and must not be done by imag-
ining them’.³⁹ Potentia, by contrast, expresses a type of disciplinary power that
aims not to prohibit but to prescribe. In calling this type of power gouvernmen-
talité, Foucault suggests that this ensemble of governmental analyses, calcula-
tions, and tactics ‘has the population as its target, political economy as its major
form of knowledge, and apparatuses of security as its essential instrument’.⁴⁰ As a
consequence, ‘law recedes’ or, at least, ‘law is certainly not the major instrument
in the perspective of what government should be’.⁴¹ With government by way of
potentia ‘it is not a question of imposing law on men but of disposing of things:
that is, of employing tactics rather than laws, and even of using laws themselves
as tactics’.⁴²
Although Foucault’s attribution of the growth of potentia to the emergence
of the ‘problem of population’ is similar to Oakeshott’s claim that the mode of
universitas flourishes because of the governmental response to ‘the problem of
“the poor” ’,⁴³ Foucault contends that the novelty of the concept of population
lies in the fact that it is not ‘a collection of juridical subjects in an individual or
collective relationship with a sovereign will’ but is ‘a set of elements in which
we can note constants and regularities even in accidents’.⁴⁴ Jurists have tried,
³⁷ Michel Foucault, ‘Governmentality’ in his Essential Works, vol.3 James D Faubion (ed)
(London: Penguin, 2000), 201–222, 215.
³⁸ Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78
Michel Senellart (ed) Graham Burchell (trans) (London: Palgrave, 2007), 46: ‘the basic function of
the system of legality . . . is to give greater definition to things that are prohibited’.
³⁹ Ibid, 47. ⁴⁰ Ibid, 108. ⁴¹ Ibid, 99. ⁴² Foucault, above n 37, 211.
⁴³ See Foucault, above n 37; Oakeshott, above n 14. ⁴⁴ Foucault, above n 38, 74.
through contract theory, to incorporate the art of government within theories of
sovereignty, but Foucault claims that this could not work since the ‘government
of populations’ is ‘completely different from the exercise of sovereignty over the
fine grain of individual behaviours’.⁴⁵ This new economy of power operates on
the assumption that ‘the population possesses its own regularities: its death rate,
its incidents of disease, its regularities of accidents’.⁴⁶ These statistical regularities
appear not in the domain of the imaginary but ‘in a sphere that is . . . complemen-
tary to reality’.⁴⁷
Foucault thus argues that potentia is the distinctive characteristic of the
modern state. Hence, the modern state is born only ‘when governmentality
becomes a calculated and reflected practice’, and only at this moment is it rec-
ognized that the sovereign’s task ‘is not that of God in relation to nature, or of
the soul in relation to the body, or of the pastor in relation to his flock, or of the
father in relation to his children’.⁴⁸ The sovereign’s task ‘is absolutely specific:
it consists in governing’.⁴⁹ Th is singular art of government is concerned with
‘restoring, maintaining, distributing, and re-establishing relations of force
within a space of competition that entails competitive growths’.⁵⁰ Externally,
the distinctive state techniques are those needed to maintain a European bal-
ance of power in the context of inter-state competition; internally, it is that of
police (Polizei).
By highlighting the importance of potentia (as infrastructural power or gou-
vernmentalité) in modern government, Mann and Foucault make significant
advances in our understanding of the character of political power. Before adopt-
ing their accounts, however, it should first be noted that both operate entirely
within a discourse of ‘power over’, of power as domination. Mann’s argument is
explicit: while there are, he claims, four main sources of social power (ideological,
economic, military, and political relationships), all four sources are held to ‘offer
alternative organisational means of social control’.⁵¹ Although suggesting that dis-
ciplinary power of modern government has a productive rather than intrinsically
coercive quality, Foucault’s argument similarly operates entirely in the frame-
work of domination.⁵² Indeed, Foucault’s argument has been widely criticized
precisely because it avoids altogether the normativity of political engagement and
⁴⁵ Ibid, 66. ⁴⁶ Ibid, 104. ⁴⁷ Ibid, 47. ⁴⁸ Ibid, 165, 236.

⁴⁹ Ibid, 236. ⁵⁰ Ibid, 312.
⁵¹ Mann, above n 30, vol 1, 3 (emphasis supplied). See also vol 2, 9: ‘Political power is state
power. It is essentially authoritative, commanded and willed from a centre. State organisation is
twofold: domestically, it is “territorially centralised”; externally, it involves geopolitics’.
⁵² See Michel Foucault, Power/Knowledge Colin Gordon (trans) (Brighton: Harvester Press,
1980), 96: ‘In speaking of domination I do not have in mind that solid or global kind of domination
that one person exercises over others, or one group exercises over another, but the manifold forms
of domination that can be exercised within society. Not the domination of the king in his central
position, but that of his subjects in their mutual relations: not the uniform edifice of sovereignty,
but the multiple forms of subjugation that have a place and function within the social organism’.
II. Power 169
shuns any sense that disciplinary structures can operate not only as structures of
domination but also to facilitate the power of agency.⁵³
This equation of power with domination, even in the varied forms that Mann
and Foucault examine, is an inadequate basis on which to found an analysis of
the public sphere in general and public law in particular. Equating power with
domination fails to accommodate the fact that power not only constrains but
can also facilitate. It overlooks the obvious point that, as Spinoza noted, ‘if two
come together and unite in their strength, they have jointly more power’.⁵⁴ If the
significance of the tension between potestas and potentia is to be grasped, then
power and domination must be kept conceptually distinct. For this to occur, two
things need to be set in place. First, specific recognition must be accorded to the
generative (‘power to’) as well as the distributive (‘power over’) aspect of power
relations. Secondly, potestas should be recognized to be a form of power that does
not simply amount to an exercise of domination; acknowledging its association
with societas, it may amount to a rightful exercise of authority that, in some form
or other, is based on consent.
As Spinoza recognized, power can also be conceived as working to give indi-
viduals a capacity for social action. This is what is meant by ‘power to’. It is rooted
in the inter-subjective generation of solidarity, and therefore for Spinoza links
with the workings of potentia. During the twentieth century, the generative
aspect of social power that Spinoza highlighted was given particular emphasis in
the work of Arendt.
Highlighting the inter-subjective character of political action—and thereby
building on Fichte’s account of man as an active and thinking being living within
a community of other free beings⁵⁵—Arendt argues that politics is principally
concerned with the power generated by the human ability to act in concert.⁵⁶
Political power is a product of the world-building capacity of humans; it comes
into being ‘only if and when men join themselves together for the purpose of
action and it will disappear when, for whatever reason, they disperse and desert
one another’. Arendt claims that power is ‘the only human attribute which applies
solely to the worldly in-between space by which men are mutually related’ and
when they ‘combine in the act of foundation’.⁵⁷ This is an autonomous type of
⁵³ See, eg, Charles Taylor, ‘Foucault on Freedom and Truth’ in his Philosophy and the Human
Sciences: Philosophical Papers, vol.2 (Cambridge: Cambridge University Press, 1985), 152–184;
Michael Walzer, ‘The Lonely Politics of Michel Foucault’ in his The Company of Critics: Social
Criticism and Political Commitment in the Twentieth Century (New York: Basic Books, 1988),
191–209.
⁵⁴ Benedict de Spinoza, Tractatus Politicus [c1677] in Tractatus Theologico-Politicus, Tractatus
Politicus RHM Elwes (trans) (London: Routledge, c1951), 279–387, 296.
⁵⁵ See above ch 5, 141–142.
⁵⁶ See Hannah Arendt, The Promise of Politics Jerome Kohn (ed) (New York: Schocken Books,
2005), 93–96.
⁵⁷ Hannah Arendt, On Revolution (Harmondsworth: Penguin, 1973), 175.
power that requires no other material factors for its existence other than ‘the
living together of people’.⁵⁸
Arendt extends this argument by asserting that, being different from pre-polit-
ical natural violence, power comes into being only when people ‘bind themselves
through promises, covenants, and mutual pledges’.⁵⁹ For power to be effectively
utilized, revolution requires constitution.⁶⁰ Arendt’s elaboration of the intrin-
sic link between generative power and institutionalization thus, once again,
recalls Bodin’s insight that ‘less is more’. Arendt notes that political power ‘can be
divided without decreasing it, and the interplay of powers with their checks and
balances is even liable to generate more power, so long, at least, as the interplay is
alive and has not resulted in a stalemate’.⁶¹
The central point of Arendt’s argument about the generative aspect of politi-
cal power is taken up by Habermas, whose concept of communicative action
exhibits many of the characteristics of ‘power to’.⁶² Habermas’ formulation has
the distinct advantage of bringing communicative action (power to) and strate-
gic action (power over) into alignment: whereas Mann and Foucault emphasize
domination and Arendt focuses on inter-subjectivity, Habermas suggests that the
tensions between instrumental rationality and communicative rationality—sys-
tem and lifeworld—offer a key to understanding the modern world.⁶³ Habermas
also offers a more nuanced account of law. In place of Foucault’s (ambiguous)
claims that law is displaced as an ordering mechanism in the modern world,⁶⁴
⁵⁸ Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 201.
⁵⁹ Arendt, above n 57, 181.
⁶⁰ Arendt thus argues that the problems of the French Revolution flowed from the inability of
the vanguard to grasp this immanent institutional logic: ‘the deification of the people in the French
Revolution was the inevitable consequence of the attempt to derive both law and power from the
selfsame source’ (ibid, 183). The resulting need to discover ‘an ever-present transcendent source of
authority’ thus drove Robespierre to attempt to establish the cult of a Supreme Being (ibid, 185).
But this failure to distinguish between power, violence, and authority also led to the strength of the
multitude being able continually to overthrow the authority of the governing power. Arendt here
closely follows Hegel’s interpretation of the French Revolution: see above ch 5, 152.
⁶¹ Arendt, above n 58, 201.
⁶² Jürgen Habermas, ‘Hannah Arendt’s Communications Concept of Power’ (1977) 44 Social
Research 3–23.
⁶³ See Jürgen Habermas, The Theory of Communicative Action, vol.1 (London: Heinemann,
1984); Jürgen Habermas, The Theory of Communicative Action, vol.2 (Cambridge: Polity Press,
1987).
⁶⁴ I suggest ambiguity because, although claiming that gouvernmentalité is the distinctive char-
acteristic of modernity, Foucault does not suggest that the influence of ‘sovereignty’ is overcome:
‘we should not see things as the replacement of a society of sovereignty by a society of discipline,
and then of a society of discipline by a society, say, of government. In fact we have a triangle: sov-
ereignty, discipline, and governmental management, which has population as its main target and
apparatuses of security as its essential mechanism. Anyway, I wanted to show you the profound
historical link between the movement that overturns the constants of sovereignty consequent on
the major problem of good choices of government; the movement that reveals the population as a
given, as a field of intervention, and as the end of government techniques; and [finally,] the process
that isolates the economy as a specific domain of reality, with political economy as both a science
and a technique of intervention in this field of reality’ (above n 38, 107–108).
III. Liberty 171
Habermas argues that modern societies ‘are integrated not only socially through
values, norms and mutual understanding, but also systemically through markets
and the administrative use of power’ and that, as a consequence, law remains ‘a
profoundly ambiguous medium of societal integration’.⁶⁵
Although the particular route taken by Habermas—that of seeking a solution
in the possibility of grounding rational consensus in discourse ethics—remains
contentious, this is of secondary significance. For our purposes, the importance of
Habermas’ analysis lies in the way he frames the issues. By maintaining a distinc-
tion both between the generative and distributive aspects of power and between
the forms of power exhibited in potestas and potentia, his achievement is to have
established an intellectual framework that is able to incorporate the specificities
of political power. Further, by highlighting the challenges posed by the work-
ings of potentia in the modern world—the ways in which potentia is not simply
generative but can also constrain through its disciplines and which is summed
up in his argument about the ‘colonization of the lifeworld’⁶⁶—he identifies the
tensions between norm and reality that condition the workings of public law in
the modern world.
III. Liberty
Since public law acquires both its autonomy and authority through its own
modes of operations, a problem revealed itself: the power generated through this
system has the potential to absorb everything. This problem is addressed, as we
have seen, in the architectural formation of public law: institutional checks and
constraints are required to ensure that governmental power is used only for the
public good. But there is ambiguity in this solution because the institutions of
government incorporate the double aspect of simultaneously enabling and con-
straining individual action. This ambiguity highlights an ambivalence about the
meaning of liberty and its relationship to law.
This ambivalent relationship between liberty and law is revealed by comparing
the formulations of Hobbes and Spinoza. As has been seen, Hobbes specifically
breaks with the traditional discourse of natural law by defining law simply as that
which is enacted by the sovereign power. This manoeuvre enables him also to set
in place a novel idea of liberty. For Hobbes, liberty is a space for action that lies
circumstantially beyond the limit of what the sovereign has prohibited. Although
the sovereign possesses an unfettered right of command, this right should only
be exercised to impose rules for securing the welfare of the people. This means
that only a relatively small portion of individual action is brought within the
⁶⁵ Habermas, above n 27, 39–40.

⁶⁶ Habermas, above n 63, vol 2, 367–373; Jürgen Habermas, Legitimation Crisis (Boston:
Beacon Press, 1975).
operations of the law: ‘the things that are neither commanded nor forbidden
must be almost infinite; and each man can do them or not at his discretion’.⁶⁷ By
liberty, then, Hobbes means ‘that part of natural right which is allowed and left
to the citizens by the civil laws’.⁶⁸ Liberty is the absence of external constraint.
In Hobbes’ innovative account, (natural) right and (positive) law must be
clearly distinguished: right is permissive, while law is obligatory. Being a species
of right, liberty is that which we are permitted to do in the sphere of action that
lies beyond the obligatory constraints of the law. Hobbes gives us an account
of what some have called the concept of ‘juridical liberty’,⁶⁹ but which is more
commonly termed ‘negative liberty’.⁷⁰ This account of liberty has been highly
influential in modern liberal thought. In this understanding, law and liberty are
antagonistic: our freedoms are enhanced by removing the restrictions imposed
by law. By differentiating right and law in this manner and restricting juristic
analysis to the structure of positive law, Hobbes—paradoxically, given the label
of ‘juridical liberty’—removes liberty from the categories of juristic knowledge.
Hobbes’ account should be contrasted with that of Spinoza. While accept-
ing the Hobbesian argument that the sovereign’s right to command (potestas) is
absolute, Spinoza argues that this right is in reality circumscribed by the limits
of power (potentia). Spinoza here identifies a distinct species of right that derives
from power. For Spinoza, this is the concept of political right: political right is
formed by way of a dialectical process between ‘legal’ right (potestas) and ‘actual’
power (potentia). By deploying this concept of political right, Spinoza is able to
argue that the possibility of freedom is created only with the establishment of the
state and that, rather than being conceived as imposing restrictions on freedom,
the sovereign’s commands—properly understood—form the conditions for the
realization of freedom. That is, the sovereign’s objective in using potestas is not to
turn people into slaves ‘but to enable them to develop their minds and bodies in
security’.⁷¹ Although agreeing with Hobbes that the range of the sovereign’s com-
mands will in reality be limited by the purpose of providing common security,
Spinoza is able, through his use of this concept of political right, to draw different
⁶⁷ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 150.
⁶⁸ Ibid, 91.
⁶⁹ See, eg, Edward S Corwin, Liberty Against Government (Baton Rouge: Louisiana State
University Press, 1948), esp ch 1, ‘Liberty as a Juridical Concept’.
⁷⁰ See Benjamin Constant, ‘The liberty of the ancients compared with that of the moderns’
[1819] in his Political Writings Biancamaria Fontana (trans) (Cambridge: Cambridge University
Press, 1988), 307–328, 310: ‘First ask yourselves, Gentlemen, what an Englishman, a Frenchman,
and a citizen of the United States of America understand today by the word “liberty”. For each of
them it is the right to be subjected only to the laws, and to be neither arrested, detained, put to
death or maltreated in any way by the arbitrary will of one or more individuals . . .’. See also Isaiah
Berlin, ‘Two Concepts of Liberty’ in his Four Essays on Liberty (Oxford: Oxford University Press,
1969), 118–172.
⁷¹ Benedict de Spinoza, Tractatus Theologico-Politicus [1670] in Tractatus Theologico-Politicus,
Tractatus Politicus, above n 54, 1–282, 259.
III. Liberty 173
conclusions about the relationship between law and liberty. Political right does
not limit freedom: it establishes the conditions that make possible its realization.
Once the distinction that Spinoza makes between positive law and political
right is acknowledged, many of the current controversies can be set in a less
antagonistic framework. One obvious tension is that which has been expressed
in liberal political philosophy between negative and positive liberty. As we have
seen, the negative conception—freedom as the absence of external constraint—
was first clearly expressed by Hobbes in the process of delimiting the concept
of law as that of potestas. Having determined the authority of the state and the
sovereign, Hobbes was able to argue that liberty is protected by ensuring that the
laws—the sovereign’s commands—do not unnecessarily restrict the individual’s
autonomy of action. Thus, says Constant, liberty in this sense entails ‘the right of
everyone to express their opinion, choose a profession and practise it, to dispose
of property . . . to come and go without permission’ and so on.⁷² This modern con-
cept is to be contrasted with what he called the liberty of the ancients, the ability
of citizens freely to participate in the collective decision-making processes of the
state, and is today what we would call freedom as self-government. But Constant
notes that this ancient idea of freedom is very different from the modern concept.
In the ancient world: ‘All private actions were submitted to a severe surveillance.
No importance was given to individual independence, neither in relation to opin-
ions, nor to labour, nor, above all, to religion’.⁷³
This liberty of the ancients has been reformulated in a modern form, albeit not
altogether happily, as the concept of positive liberty.⁷⁴ Positive liberty, treated as
the ability to live a particular form of life that will enable the realization of one’s
potential,⁷⁵ is the form of liberty extolled by those who associate public action
with the promotion of freedom. Although this notion of freedom as self-realiza-
tion is sometimes criticized as being an attempt to promote equality in the name
of liberty, others emphasize that negative liberty is a purely formal juristic notion
that makes sense only once a system of authority has already been established.
Negative liberty, which is realized through the operation of positive law, must at
some level presume some notion of positive liberty that is realized through the
operation of political right.
The connections between these two concepts of liberty have been of particu-
lar interest to those scholars who today are seeking to restore a neo-republican
⁷² Constant, above n 70, 310–311. ⁷³ Ibid, 311.

⁷⁴ See Berlin, above n 70. Cf Marc Stears, Progressives, Pluralists, and the Problems of the State:
Ideologies of Reform in the United States and Britain, 1909–1926 (Oxford: Oxford University Press,
2002), 25, arguing that this distinction ‘fails to provide the means necessary for a thorough theo-
retical comprehension, let alone an attempt at normative evaluation, of the complex debates of the
age, because it is both analytically simplistic and historically anachronistic’.
⁷⁵ Th is is expressed most clearly in neo-Hegelian language. See, eg, Bernard Bosanquet, The
Philosophical Theory of the State (London: Macmillan, 3rd edn, 1925), 128–129: ‘that which we are
freed from is . . . not the constraint of those we commonly regard as others, but the constraint of
what we commonly regard as a part of ourself ’.
version of liberty.⁷⁶ Focusing on freedom not as a lack of constraint but as the
absence of domination, republican conceptions do not treat the exercise of potestas
as necessarily amounting to a restriction on liberty. Liberty as non-domination
requires an examination of the purpose behind such restrictions. Since con-
straints imposed for the purpose of promoting equal liberty are justified in the
name of liberty, the critical issue is that of ensuring that public power is not
exercised arbitrarily. Republican freedom is, in this sense, an explicitly political
notion of freedom: rather than being a natural or intrinsic human character-
istic, liberty is a quality created through governmental action.⁷⁷ Accepting the
pivotal role of government in the realization of freedom as non-dependency of
citizens, republicanism seeks to establish harmony between potestas and poten-
tia, and thereby also to achieve some reconciliation between the two modes of
self-division of the state. Recognizing that the exercise of political power can
be both enabling and constraining, it expresses particular interest in the type
of constitutional arrangements that are consonant with, and can be used to
promote, republican liberty.
Neo-republican accounts bring us nearer the idea of liberty underpinning the
autonomous concept of public law. As an explicitly political concept that treats
liberty as an achieved state rather than a natural condition, it comes closer to
acknowledging freedom as being a consequence of the operations of political
right. And as an account that focuses on the importance of institutional arrange-
ments in both generating and regulating power, neo-republicanism remains bet-
ter equipped than classical liberalism to identify the central issues concerning the
constitution of liberty in the modern state. As an account of political liberty in an
immanent mode, however, neo-republican theories contain their own deficien-
cies. Consideration of these limitations can assist in delineating a more precise
specification of liberty in the frame of political jurisprudence. These limitations
concern the foundation of the state, the historical development of the state, and
the role of government in the promotion of the republican idea of liberty.
The first concerns the way political liberty is constructed. Political liberty is a
spatially limited concept. Its bounded character receives particular attention in
the political thought of Arendt. Arendt notes that this feature is most obviously
revealed in ‘the greatest and most elementary of all negative liberties’, that of free-
dom of movement: ‘the borders of national territory or the walls of the city-state
⁷⁶ Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University
Press, 1997); Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press,
1998); Maurizio Viroli, Republicanism (New York: Hill and Wang, 2002).
⁷⁷ It might be noted that, in contradistinction to the position with respect to law, in English—
and unlike French and German—we can choose between the use of ‘liberty’ (from French and
Latin, liberté and libertas) and ‘freedom’ (from German, Freiheit). While many writers treat these
terms as being interchangeable, Arendt regards them as conceptually distinct, with liberty stand-
ing as a negative condition and freedom expressing a positive notion. Aspects of Arendt’s distinc-
tion are retained in this account. For analysis, see Hannah Fenichel Pitkin, ‘Are Freedom and
Liberty Twins?’ (1988) 16 Political Theory 523–552.
III. Liberty 175
comprehended and protected a space in which men could move freely’.⁷⁸ But
this feature is also a characteristic of freedom in general: ‘Freedom in a positive
sense is possible only among equals, and equality itself is by no means a univer-
sally valid principle but, again, applicable only with limitations and even within
spatial limits’.⁷⁹ These ‘spaces of freedom’ can be equated with the public sphere
itself. But then, as she explains, ‘we shall be inclined to think of them as islands in
a sea or as oases in a desert’.⁸⁰ It is precisely because liberty must be constructed
in this way that the boundaries of—and manner in which—political liberty is
formed are placed in question.
When liberty is understood thus, space becomes, in Lindahl’s words, ‘a sphere
of validity because law reveals space normatively, as the unity of a manifold of
ought-places’.⁸¹ Th is means that the distributive issue of how liberty is allocated
becomes inextricably linked to certain more basic questions of construction.
How is a territory able to define itself and form an inside by creating an outside?
How is a ‘we’ able to identify itself in common and therefore also in contra-
distinction to a ‘they’? Such rudimentary questions concerning the constitu-
tion of liberty tend to be neglected in republican thought. By underplaying the
consequences that flow from the fact that political liberty is a bounded liberty
operating through an inclusionary-exclusionary dynamic, republicanism fails
to register the ways in which the foundational act that establishes a political
unity is, in a strict sense, arbitrary. Although concerned to eliminate arbitrari-
ness in the exercise of potestas, arbitrariness in the constitution of potestas is
overlooked.
By ignoring this ‘original sin’, republicanism avoids the point that this founda-
tional act of will places the entire practice of governing in question: it overlooks,
in particular, the ways in which the arbitrariness of this inclusionary-exclusion-
ary division reveals the critical necessity of the governmental function. That is,
an active agency of government is required right from the moment of constitu-
tion of the state. Statehood is an exercise that stands in need of continuous man-
agement.⁸² One of the most powerful ways of undertaking this exercise is by
writing exemplary stories about the character of ‘the people’ for the purpose of
⁷⁸ Arendt, above n 57, 275. ⁷⁹ Ibid. ⁸⁰ Ibid.

⁸¹ Hans Lindahl, ‘Breaking Promises to Keep Them: Immigration and the Boundaries of
Distributive Justice’ in Lindahl (ed), A Right to Inclusion and Exclusion? Normative Faultlines of the
EU’s Area of Freedom, Security and Justice (Oxford: Hart Publishing, 2009), 137–159.
⁸² See Oakeshott, above n 2, esp 191–192: ‘The claims of governments to authority have been
supported, for the most part, by the most implausible and gimcrack beliefs which few can find con-
vincing for more than five minutes together and which bear little or no relation to the governments
concerned: “the sovereignty of the people” or of “the nation”, “democracy”, “majority rule”, “par-
ticipation” etc. . . . This conspicuous failure of most modern European states (and all the imitation
states elsewhere in the world) to acquire governments with firmly recognized authority has pro-
voked the belief that authority is of no account. Governments have become inclined to commend
themselves to their subjects merely in terms of their power and their incidental achievements, and
their subjects have become inclined to look only for this recommendation’.
creating what have been called ‘imagined communities’.⁸³ As the unfolding of
the French Revolution illustrated, modern republicanism—built on the founda-
tion of the citoyen—emerged hand-in-hand with the phenomenon of nation-
alism.⁸⁴ Republicanism’s most basic message is that political freedom flows
not from a governing regime headed by a prince, but from a republic of equal
citizens living within the framework of common laws. But since no state comes
close to being a nation state,⁸⁵ republicans are obliged to address the claims of
those such as JS Mill, who argue that ‘free institutions are next to impossible in a
country made up of different nationalities’ on the ground that ‘[a]mong a people
without fellow-feeling, especially if they read and speak different languages, the
united public opinion, necessary to the working of representative government,
cannot exist’.⁸⁶ The nature of the modern state is such that it presumes a ruling
project.
This brings us to the second point, which concerns historical development.
Since monarchy is the conventional form from which modern regimes have
emerged, the historical-sociological question for republicans is that of explain-
ing the circumstances in which governmental authority can be wrested from the
prince and placed in service of the ‘common good’. And this historical question
immediately raises the final issue: if republican liberty involves the realization of
civic virtue rather than simply the optimalization of desire, this governmental
authority must be conceived as having an active educative role in moulding the
character of the people. Each of these issues suggests an aristocratic role for gov-
ernment that republican theory—viewing governors as the agents of the people—
cannot easily accommodate. That is, conceived as a historical project, republican
liberty can be achieved only through the establishment of a civil religion. Hobbes
acknowledged that such a role required government to act in an authoritarian
manner; he openly recognized that the formation of a firm and lasting state edi-
fice required the sovereign to instill habits of obedience in the people by, through
the use of a political catechism, instructing them in the essential rights of sover-
eignty.⁸⁷ What is less explicitly accepted is that republicanism similarly requires
the state actively to educate citizens in their duties towards the common good.⁸⁸
⁸³ Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism
(London: Verso, 2006).
⁸⁴ See Ernest Gellner, Nationalism (London: Weidenfeld & Nicolson, 1997), 3: ‘Nationalism is
a political principle which maintains that similarity of culture is the basic social bond’.
⁸⁵ Oakeshott, above n 2, 188: ‘All European states began as mixed and miscellaneous collec-
tions of human beings precariously held together, disturbed by what they had swallowed and were
unable to digest, and distracted by plausible or fancied irredènta. And no European state (let alone
an imitation European state elsewhere in the world) has ever come within measurable distance of
being a “nation state”’.
⁸⁶ John Stuart Mill, ‘Considerations on Representative Government’ [1861] in his Three Essays
(Oxford: Oxford University Press, 1975), 144–423, 382.
⁸⁷ Hobbes, above n 67, 233–236.
⁸⁸ Cf Jean-Jacques Rousseau, Social Contract in his Political Writings Victor Gourevitch (ed)
(Cambridge: Cambridge University Press, 1997), vol 2, 39–152, 141–151 (Of civil religion).
III. Liberty 177
Bringing these historical-sociological questions to bear on republican theory

exposes many of the ambiguities of political liberty within the modern state.
While capturing important facets of political liberty, republicanism remains a
normative theory that privileges agency over structure. From a sociological per-
spective, modern state formation opens the potential for achieving equal liberty
while at the same time establishing a structure that constrains and disciplines
individuals. Although constructed on the figure of the autonomous individual
who assumes responsibility for his actions and consents to the establishment of a
governing authority, modern practices of political right at the same time presup-
pose the existence of governmental institutions with the power to shape indi-
viduals.⁸⁹ This double inscription explains why governmental institutions are
simultaneously enabling and constraining.
The radical consequence of this argument is this: from the perspective of polit-
ical jurisprudence, power and liberty must be treated as forming two sides of the
same coin. As Spinoza recognized, a central problem for political right is that
of grasping the relation between liberty (asserted in the language of subjective
rights) and power (asserted by the collective agency established to achieve their
universalization). This tension expresses the dialectic of enablement and con-
straint in modern institutional formation. But with the development of extensive
modern governmental systems driven by technological innovation and expressed
through the workings of potentia, individuals are increasingly being subjected to
the dominance of instrumental rationalities.⁹⁰ Government is ubiquitous and,
with this, Hobbesian liberty—in the sense of negative liberties and privileges
that vest in the person and are beyond the public sphere—can no longer easily be
grasped. Freedom becomes a concept that is to be understood within the frame
of political power, ‘not only as the right of individuals legitimately opposed to the
power . . . of the sovereign or the government, but as an element that has become
indispensable to governmentality itself’.⁹¹ As Foucault expresses it, ‘a condition of
governing well is that freedom, or certain forms of freedom, are really respected’,
since the failure to respect freedom ‘is not only an abuse of rights with regard to
the law, it is above all ignorance of how to govern properly’.⁹² Political liberty is
inscribed within the operations of political power, and consequently becomes a
notion of considerable ambivalence.
⁸⁹ Peter Wagner, A Sociology of Modernity: Liberty and Discipline (London: Routledge, 1994),
20: ‘In more specific and historically concrete terms, this means that the “structures” to which
human beings appear to be exposed and to draw on in their actions, are the effects of earlier human
action, of the modes of habitualization and conventionalization, and the material results of such
action. Habits and conventions define the applicability of social rules’.
⁹⁰ The metaphors invoked here range from Weber’s ‘iron cage’ of modernity to Habermas’
‘colonization of the lifeworld’: see Peter Baehr, ‘The “Iron Cage” and the “Shell as Hard as Steel”:
Parsons, Weber and the stahlhartes Gehäuse Metaphor in The Protestant Ethic and the Spirit of
Capitalism’ (2001) 40 History and Theory 153–169; Habermas, above n 63, esp vol 2, 367–373.
⁹¹ Foucault, above n 38, 353. ⁹² Ibid.
IV. The Grammar of Public Law
This tension between liberty and power, of enablement and constraint, can be
more clearly understood once the analogy of grammar is invoked. We turn to
grammar for an explanation of the structural features of a language, and through
the study of grammar we receive instruction in the appropriate ways to use a lan-
guage. By being attentive to the meaning of power and liberty in the practice of
public law, similarly we can begin to appreciate how such terms are properly to be
used. It is a mistake to treat power and liberty as referring to pre-political condi-
tions, such that the institutional formation of public law is to be treated either as
imposing constraints on pre-existing liberty or as bolstering and strengthening
pre-existing power: power and liberty are created through the operation of the
practices of public law. Just as the rules of grammar are not restrictions on speech
but are possibility-conferring rules that enable us to speak with greater precision,
so too should the rules and practices of public law be seen not as restrictions on
power or liberty but as rules that are constitutive of the meaning of these terms.
Constitutive rules thus possess the characteristic of being simultaneously enab-
ling and restricting. It is in this way that power and liberty become correlative
terms.
Such grammatical rules should not be treated as descriptions of some brute
reality: they are the rules that we have devised—in our case through the evolv-
ing modern practice of public law—for the correct use of certain terms. The
criterion of appropriateness of the language is not therefore whether it provides
an accurate representation of reality. It depends on other characteristic features.
One particularly important feature is whether the grammatical form of the lan-
guage can present itself as a more or less logical ordering; ie, that it is capable
of displaying a coherent conceptual scheme.⁹³ Nevertheless, establishing the
coherence of a scheme is an intricate exercise, especially as such a scheme cannot
simply be legislated: Caesar non est supra grammaticos. The meaning of a sentence
can be grasped only by understanding the language.⁹⁴ And we can only under-
stand the language by imagining a form of life.⁹⁵ When studying the grammar
of a practice, we are obliged to investigate the type of background assumptions
that anchor it.
We thus acquire knowledge of the practices of public law only by being sensi-
tive both to its formal grammatical structure and to its implicit assumptions and
background conditions. With such a range of variables at play, it is evident that
⁹³ Hilary Putnam, Reason, Truth, and History (Cambridge: Cambridge University Press, 1981),
55: ‘ “objects” do not exist independently of conceptual schemes’.
⁹⁴ Ludwig Wittgenstein, Philosophical Investigations GEM Anscombe (trans) (Oxford:
Blackwell, 1953), §199: ‘To understand a sentence means to understand a language. To understand
a language means to be master of a technique’.
⁹⁵ Wittgenstein, ibid, §19: ‘to imagine a language means to imagine a form of life’.
IV. The Grammar of Public Law 179
alternative grammars are conceivable. Their significance is likely to depend less

on the coherence of their logical form than on their utility, that is, on whether
they are more or less useful for our purposes. In this context, even Descartes
stopped short of trying to produce a generative grammar, in the sense of a formal
system of rules and principles from which all the grammatical sentences of a lan-
guage can be derived.⁹⁶ Here we should follow Wittgenstein’s example in treating
language use as a form of rule-governed activity that with respect to human con-
duct must be seen to be context-dependent and purpose-relative.
In the specific context of public law, this language has to be learned pri-
marily through experience: we acquire knowledge of the words and symbols
of the language in conjunction with an understanding of the appropriate cir-
cumstances in which to use them. But it might then be asked whether, if one
already has acquired the knowledge of how to use words appropriately, there
is anything to be gained by studying the grammar: after all, the grammar (the
theory) only makes explicit the implicit knowledge that is already possessed
(the practice). One answer is that, by studying the grammar, we become more
skilled at extending the language to cover unusual cases or situations that
appear exceptional; and this, it might be claimed, is precisely the situation we
are facing in the world of public law today. But there is also a more basic rea-
son: the general claim about the tension between theory and practice is radi-
calized by virtue of the ambiguous character of public law as it has emerged in
the modern world. As has been argued, the subject has evolved with a funda-
mental and irreconcilable ambiguity about the character of its practice located
at its core and forming its driving force. Since this ‘self-division’ within the
character of public law displays elements of both a struggle between oppos-
ing dispositions and an acknowledgement of the necessity of these disposi-
tions being reflexively connected—that is, of synagonism rather than simply
antagonism⁹⁷—this confounds all attempts to display its conceptual scheme
in a simple logical form.
The existence of competing grammars within the practice has imposed a spe-
cific ambiguity on the vocabulary of its discourse, in which words like state,
sovereignty, rulership, law, politics, democracy, and such like acquire discrepant
meanings.⁹⁸ In these circumstances, the inquiry into the foundations of public
law is best furthered by examining the ways in which such terms have come to be
deployed in the discourse of public law and showing how they can best be ordered
⁹⁶ See above ch 3, 98–100.

⁹⁷ Cf Chantal Mouffe, On the Political (London: Routledge, 2005); Nathalie Karagianis
and Peter Wagner, ‘Towards a Theory of Synagonism’ (2005) 13 Journal of Political Philosophy
235–262.
⁹⁸ See Michael Oakeshott, ‘The Vocabulary of a Modern European State’ (1975) 23 Political
Studies 319–341 (Pt I), 409–414 (Pt II).
into some relatively coherent conceptual scheme.⁹⁹ This is undertaken with
respect to three central characteristics of the practice: those that relate to mode
of association (state—see below Part III), office of authority (constitution—see
below Part IV), and apparatus of power (government— see below Part V).
⁹⁹ The existence of competing conceptual schemes has led some philosophers to question
whether objectivity remains possible: see Donald Davidson, ‘On the Very Idea of a Conceptual
Scheme’ in his Inquiries into Truth and Interpretation (Oxford: Clarendon Press, 1984), 183–198;
cf Hans-Georg Gadamer, Truth and Method Joel Weinsheimer and Donald G Marshall (trans)
(London: Sheed and Ward, 2nd edn, 1989), 305–307.
PA RT I I I
S TAT E
7
The Concept of the State
In his seminal work tracing the emergence of the central ideas of modern political
discourse, Skinner explains how the state appeared as ‘an omnipotent yet imper-
sonal power’, concluding that ‘by the beginning of the seventeenth century, the
concept of the State—its nature, its powers, its right to command obedience—
had come to be regarded as the most important object of analysis in European
political thought’.¹ The ‘modern theory of the state remains to be constructed’, he
suggested, ‘but its foundations are now complete’.² In the modern era then emer-
ging, the state takes its place as ‘the master noun of political argument’.³
Skinner’s claims have particular significance from a juristic perspective, since
the state becomes the foundational concept of public law. This has been con-
tested, but the controversy arises from extensive ambiguities surrounding the
nature of the concept. Some scholars have argued that, given the range of confu-
sion it generates, the concept no longer fulfils any useful purpose and should now
be abandoned.⁴ But if the nature of public law is to be grasped, this is precisely
what cannot be done. From the perspective of political jurisprudence, Skinner’s
claims can be extended. The concept of the state is nothing less than the sine qua
non of public law.
In this chapter, the indispensability of the concept of the state for public law
will be considered. For this purpose, it is necessary first to present an outline of
how the idea of the state emerged through a series of protracted struggles over its
meaning. Evident from the historical account is the fact that the state is inextric-
ably linked to the concept of sovereignty. The state assumes sovereignty just as
¹ Quentin Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge

University Press, 1978), vol 2, 358, 349.
² Ibid, 358.
³ Quentin Skinner, ‘The State’ in T Ball, J Farr, and RL Hanson (eds), Political Innovation
and Conceptual Change (Cambridge: Cambridge University Press, 1989), 90–131, 123. Skinner
here follows Geertz: see Clifford Geertz, Negara: The Theatre State in Nineteenth-Century Bali
(Princeton, NJ: Princeton University Press, 1980), 121: ‘That master noun of modern political
discourse, state.’
⁴ See, eg, David Easton, ‘The political system besieged by the State’ (1981) 9 Political Theory
303–325, 321–322; JAG Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1–21,
16: ‘I begin by rejecting the existence of that abstraction called the State. With Carlyle I accept the
universe. I also accept the country and the nations that inhabit it. But the State is yet another meta-
physic invented to conceal the reality of political power’.
184 The Concept of the State
sovereignty assumes the state; the notion of the ‘sovereign state’ is tautological.
The main objective of the chapter will be to unravel the variety of meanings sur-
rounding the concept of the state, to explain its specific juristic meaning, and to
indicate how it performs a pivotal role in public law.
I. Sovereignty: A Conceptual Sketch
Much of the confusion surrounding the concept of the state arises from the fact
that although state and sovereignty are inextricably linked, each concept gives
rise to a variety of discrepant meanings.⁵
The concept of sovereignty has its roots in the figure of the sovereign.⁶ The
term ‘sovereign’ originally denoted the office of the ruler, and it signified the
nature of the authority of that office. The sovereign ruler was not legally obliged
to any other power, and a medieval king who remained subject to the control of
the emperor was therefore not a sovereign ruler. Once the nature of the office of
the sovereign ruler was recognized, it was accepted not only that the ruler’s ‘sov-
ereignty’ indicated his independence from higher authority, but also that sover-
eignty signified the quality of the legal relationship between ruler and subject.
The potestas of the sovereign ruler was absolute.⁷
When in the early-modern period the ruler acquired more extensive govern-
mental responsibilities, the representative nature of the office assumed a greater
significance and, whatever deference might be paid to the king’s majesty, it was
generally accepted that the ruler did not exercise a personal power.⁸ Recognition
of the representative—and therefore public—character of the office was achieved
in circuitous fashion. Essentially, the monarchical image of the sovereign ruler was
magnified and idealized. Once kingship took on the character of an ideal office,
the way was open for the notion of ‘the king’s will’ to become institutionalized.⁹
⁵ Reinhart Koselleck, ‘Staat und Souveränität’ in Otto Brunner, Werner Conze, and Reinhart
Koselleck (eds), Geschichtliche Grundbegriff e: Historisches Lexicon zur Politisch-Sozialen Sprache
in Deutschland (Stuttgart: Klett-Cotta, 1972–1990), vol 6, 1–154. For the medieval origins, see
Otto Brunner, Land and Lordship: Structures of Governance in Medieval Austria [1943] Howard
Kaminsky and James Van Horn Melton (trans) (Philadelphia: University of Pennsylvania Press,
1984).
⁶ See above ch 1, 38–39.
⁷ See above ch 2, 64 (Bodin); 77 (Hobbes).
⁸ See, eg, above ch 2, 71 (Althusius); 78 (Hobbes).
⁹ See above ch 2, 72–73. See further ES Morgan, Inventing the People: The Rise of Popular
Sovereignty in England and America (New York: Norton, 1989). Morgan argues that, in the early-
seventeenth-century English constitutional disputes, the concept of divine right and the ideal-
ization of the monarchy was a principal means of control: ‘What is more remarkable is that they
[parliamentarians] were able to turn . . . the exaltation of the king into a means of limiting his
authority. By placing the king’s wisdom and authority on the plane of divinity the Commons
denied the possibility of any other mortal sharing these royal attributes: in particular, they denied
the possibility of transferring them to any subject. Divine authority must be inalienable author-
ity, and the Commons made themselves guardians of it against any subject who might arrogate a
I. Sovereignty: A Conceptual Sketch 185
Idealization of the office was the precondition of its institutionalization. This

transition is illustrated by comparing Louis XIV’s seventeenth-century claim,
L’Etat, c’est moi, with that of Frederick the Great’s assertion in the eighteenth cen-
tury that he was the ‘first servant of the state’.¹⁰
Institutionalization of the office of the sovereign led, in turn, to its corpor-
atization, accomplished through internal differentiation. The ‘sovereign’ powers
of government—what Bodin had called the ‘marks of sovereignty’¹¹—no longer
inhered directly in the person of the ruler, but came to be exercised variously
through the King-in-Parliament, the King-in-Council, the king’s ministers,
and the king’s courts. This principle is clearly evident in the British doctrine
that the King-in-Parliament is sovereign, but institutionalization also occurred
in so-called ‘absolutist’ regimes. Sovereignty came to mean the absolute legal
authority of the ruling power in its corporate capacity.
These related processes—institutionalization, internal differentiation, and cor-
poratization of the office of the sovereign—made it necessary to distinguish between
the sovereign powers of rule and the concept of sovereignty itself.¹² Specifically, the
powers of rule could be divided, but sovereignty—the absolute authority of the rul-
ing power—could not.¹³ As Bodin was the first to note, the concept of sovereignty
had to be distinguished from the exercise of the sovereign powers of government.¹⁴
This distinction between sovereignty and government took on a further twist
with the acceptance that sovereign right was not bestowed from above by God,
but was conferred from below by the people. Secularization of the foundation
myth ushered in a variety of claims about the ultimate source of authority under
the banner of ‘popular sovereignty’.¹⁵ But since ‘the people’ exist qua people only
when institutional arrangements of governing are established, this type of claim
part of it. Those who did things in the king’s name did so at their peril . . . Nothing could be more
presumptuous than to do wrong in the name of him who could do no wrong. . . . The divine right
of kings had never been more than a fiction, and as used by the Commons it led toward the fiction
that replaced it, the sovereignty of the people. Although the two may seem to lie at opposite poles,
they were more closely linked than at first it would seem. By accepting the king’s divine right, by
insisting that his authority was pure and indivisible, the Commons had come a good way toward
making that authority unworkable except on the terms they dictated. By elevating the king, they
prepared his destruction; and by humbling mighty subjects they made way for the rise of the hum-
ble, made way indeed for the new fictions of a world in which all men are created equal and govern-
ments derive their powers from those they govern’ (at 25, 36–37).
¹⁰ See Friedrich Meinecke, Machiavellism: The Doctrine of Raison d’État and its Place in Modern
History Douglas Scott (trans) (New Haven, CT: Yale University Press, 1957), 272–339; Christopher
Clark, Iron Kingdom: The Rise and Downfall of Prussia, 1600–1947 (London: Penguin, 2007),
239–246; JK Bluntschli, Geschichte der neuren Staatswissenschaft (Munich: Oldenburg, 1881), 261:
‘no one questions that he [Frederick the Great] was the first and most distinguished representative
of modern statecraft in Germany’ (‘Niemand bestreitet, daß er der erste und bedeutendte Vertreter der
modernen Staatspraxis in Deutschland sei’).
¹¹ Bodin, République, Bk 1, ch 10; above ch 2, 64.
¹² See above ch 2, 75–76 (Grotius); 80 (Pufendorf).
¹³ See above ch 2, 75 (Grotius).
¹⁴ See above ch 2, 58–59.
¹⁵ See Morgan, above n 9, esp ch 3.
is paradoxical. One way in which this difficulty has been finessed has been to
change the nature of the argument. Eschewing the historical account, the ultim-
ate source of authority is reinterpreted as a virtual act: the political pact, other-
wise known as the social contract.¹⁶ This pact came to symbolize the passage
from natural to civil or political existence, even though it acquired this meaning
only in retrospect.¹⁷
Once the virtual character of this transition is acknowledged, it becomes clear
that, other than in a purely representational sense, power cannot be delegated
from the people (the multitude) to their governors. Consequently, some of the
claims of popular sovereignty must fail. But it is only through this type of virtual
exercise that the imaginative world of the political—the world of public law—is
created. Only then can sovereignty be recognized as a representation of the power
and authority created through the formation of that world. Sovereignty is vested
neither in the ruler, nor in the office of government, nor in the people: sovereignty
vests in the relationship itself.¹⁸
So the trajectory of development of the idea of absolute authority moves from
sovereign ruler, through the corporatization of the office, to a sense of sovereignty
that is conceptually different from the actual institutional arrangements of gov-
ernment. Sovereignty now presents itself as a representation of the autonomy of
the public sphere; in other words, as a symbol of the absolute authority of that
sphere.
This assertion of absolute authority involves a double juristic claim. First, this
world of absolute authority (sovereignty) must assume an institutional form,
and this is effected by conferring the office of government with a rightful power.
Secondly, the power conferred equips government with unlimited competence
to govern through the instrumentality of law. The first claim concerns the estab-
lishment of the authority of government by operation of political right (droit poli-
tique), and the second suggests that, through the operations of political right, an
unlimited competence to govern by way of positive law (potestas) is conferred.
II. Status, Estate, State
We can now turn more directly to the concept of the state. This concept, closely
associated with the concept of sovereignty, has its origins in the Latin term, sta-
tus, a condition of stability, and the French word, état, which originally signi-
fied an estate. Only in the modern era, when the term became dissociated from
a personal relationship of princely government, did it acquire its contemporary
¹⁶ See above ch 2, 77–78 (Hobbes).

¹⁷ Paul Ricoeur, ‘The Political Paradox’ in William Connolly (ed), Legitimacy and the State
(Oxford: Blackwell, 1984), 250–272.
¹⁸ See above ch 2, 76 (Grotius). This argument is elaborated in Martin Loughlin, The Idea of
Public Law (Oxford: Oxford University Press, 2003), ch 5.
meaning as a political domain existing independently of the ruler. The govern-

ing arrangements of the middle ages had been a function of the workings of the
three estates of the realm—of those who fight, those who pray, and those who
work—and only with the emergence of absolutism could the ‘royal estate’ be seen
to embrace the others.
The transition to the modern meaning of the state followed a circuitous
route. This was partly because of etymological ambiguity: as used in French, for
example, état referred to a condition, an estate, and the state.¹⁹ Elaborating on
these difficulties, Geertz noted that the concept of the state had ‘at least three
etymological themes diversely condensed within it: status, in the sense of sta-
tion, standing, rank, condition—estate . . . ; pomp, in the sense of splendour, dis-
play, dignity, presence—stateliness . . . ; and governance, in the sense of regnancy,
regime, dominion, mastery—statecraft’.²⁰ For a clearer sense of the concept of the
state, these aspects must be unravelled.
Status originally referred to a general condition of stability, but the term was
often applied with specific effect to the public realm. We find the Roman lawyer,
Ulpian, defining public law in such terms: Publicum ius est quod ad statum rei
Romanae spectat (public law is concerned with the organization of the Roman
state).²¹ Similarly, during the Middle Ages, it was generally accepted that the
ultimate right and duty of the king was to maintain the state of the realm (status
regni).²² But Geertz’s comment also reminds us that, since the quality of stateli-
ness is inherent in the idea of kingship, the presence of majesty itself operates as an
ordering force. Only under modern conditions, in which the charismatic facets
of political leadership are gradually superseded by the emergence of an imper-
sonal conception of rulership, could the concept of the state be detached from the
splendour and display of majesty. Only then could it express the idea of the public
realm.
We see the beginnings of this modern understanding reflected in Raleigh’s
Maxims of State of 1618, in which he maintained that ‘State is the frame or set
order of a commonwealth, or of the governors that rule the same, especially of
the Chief and Sovereign Governor that commandeth the rest’.²³ Raleigh identi-
fied ‘the frame of a commonwealth’ as distinct from the persons in control, but
¹⁹ See, eg, Denis Diderot and Jean d’Alambert, L’Encyclopédie, ou dictionnaire raisonné des
sciences, des arts et des métiers (Paris: np, 1751), vol 6. In the Encyclopédie, état is defined first in a
metaphysical sense as ‘the condition of being of the thing’ (at 16), later in sense of droit politique
as a general term which designates ‘a human society living together under its own government . . . a
multitude of men who are united together under a sovereign’ (at 19), and then as an estate in the
sense of the different orders that comprise a nation (at 20–27).
²⁰ Geertz, above n 3, 121.
²¹ Justinian, Digest [534] Alan Watson (trans) (Philadelphia: University of Pennsylvania Press,
1998), i.1.1.
²² Gaines Post, ‘Status Regni: Lestat du Roialme in the Statute of York, 1322’ in his Studies in
Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton, NJ: Princeton University
Press, 1964), ch 6.
²³ Cited in HC Dowdall, ‘The Word “State” ’ (1923) 39 LQR 98–125, 121.
the two concepts are not clearly differentiated. However, when he elaborates on
the nature of the state, Raleigh links sovereignty and state: ‘State or sovereignty
consisteth of five points: 1. The making or annulling of laws. 2. Creating and dis-
posing of magistrates. 3. Power over life and death. 4. Making of war and peace.
5. Highest or last appeal. Where these five are either in one or more [body] there
is the State’.²⁴ Raleigh’s definitions nevertheless suggest the necessity of draw-
ing a clear distinction between the various usages to which the term state can be
applied.
Skinner argues that the main impetus leading to the emergence of the mod-
ern concept was the growth of new political formations in Europe, and espe-
cially the emergence after the twelfth century of Italian self-governing republics.
During the Renaissance, an extensive debate took place about which type of
government—elective or hereditary—was likely to be the best state. Through
these deliberations, status eventually was found to refer ‘not merely to the state or
condition of princes, but also to the presence of particular regimes or systems of
government’.²⁵ The term state thus came to denote not merely ‘the idea of a prevail-
ing regime, but also . . . the institutions of government and means of coercive con-
trol that serve to organize and preserve order within political communities’.²⁶
This change, Skinner notes, came about not because of the evolution of legal
theories about the status of kings but as a result of practical political reasoning.
This is seen both in the mirror-for-princes texts, amongst which Machiavelli’s The
Prince (1513) is pre-eminent, and in the rival tradition of Renaissance republic-
anism. Within this latter tradition we first encounter ‘a vindication of the idea
that there is a distinct form of “civil” or “political” authority which is wholly
autonomous, which exists to regulate the public affairs of an independent com-
munity, and which brooks no rival as a source of coercive power’.²⁷ Through the
work of these republican writers—and their concept of the state as an apparatus
of government distinct from those in control of it—we reach the first stage in the
development of a clear modern understanding of the state.
The state as an impersonal apparatus could then be differentiated from those
who exercised its powers. But at this point, the concept of the state is not clearly
distinguished from that of society. Although both republican and other writers
of the period were able to formulate a notion of the state as an impersonal appar-
atus of governing, no comparable distinction was drawn between the powers of
the state and those of the people. For these theorists, the state is equated with its
citizens.²⁸ In order to appreciate this second dimension of impersonality, Skinner
suggests looking at those early-modern political theorists who were critical of
the idea that sovereignty in reality vests in the people. Amongst these theorists,
Hobbes is particularly important.
²⁴ Ibid. ²⁵ Skinner, above n 3, 98. ²⁶ Ibid, 101.

²⁷ Ibid, 107. ²⁸ Ibid, 112.
Hobbes is unusual in treating state power as deriving from an act of alienation

rather than delegation. Although the people covenant with one another to estab-
lish the sovereign, the sovereign does not make any covenant with his subjects.²⁹
Rather, ‘that great Leviathan . . . hath the use of so much Power and Strength con-
ferred on him, that by terror thereof, he is inabled to conforme the wills of them
all, to Peace at home, and mutuall ayd against their enemies abroad’.³⁰ Though
apparently absolutist, Hobbes’s analysis must not be confused with those of the
divine right theorists. The latter obliterated the distinction between the office
and person of the king and, building on the work of medieval jurists,³¹ Hobbes is
unequivocal in maintaining that the sovereign’s powers are never personal. These
powers derive entirely from his status as holder of ‘the office of sovereign’.³²
In Hobbes’ ground-breaking study of the ‘matter, form and power of a
Commonwealth . . . or State’,³³ we arrive at the modern concept of the state as a
political authority, differentiated not only from the people who originally estab-
lished this authority but also from the personality of the particular office-holders.
For Hobbes, the state’s power to command is absolute. All notions of charisma,
dignity, and honour are subsumed within the idea of power; honour is simply ‘an
argument and sign of power’.³⁴ It is Hobbes, Skinner claims, ‘who first speaks,
systematically and unapologetically, in the abstract and unmodulated tones of
the modern theorist of the state’.³⁵
Scholars such as Bodin and Hobbes here had in their sights a new object of
investigation. Rather than focusing on kingship or government, their objective
was to identify the nature of the ‘commonwealth’. By the mid-eighteenth cen-
tury, as is exemplified by Rousseau’s writings, sovereign and state were acknow-
ledged to be distinct.³⁶ But in modern times our understanding of this concept
has sometimes remained indistinct. Post notes, for example, that even under
conditions of modernity, status not only ‘began to stand by itself and become
the equivalent of Respublica, Civitas, and Regnum’ but it also came to mean ‘the
governing body rather than the territorial State’.³⁷ This ambiguity—between the
general entity (civitas) and the institution of government—assumed far greater
importance after the French Revolution, when its significance was clearly seen to
have practical implications. The concept, with all its problems and ambiguities,
was central to the work of post-revolutionary German political philosophers,
²⁹ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 122–123.
³⁰ Ibid, 227–228.
³¹ See Peter N Riesenberg, Inalienability of Sovereignty in Medieval Political Thought (New York:
Columbia University Press, 1956), ch 2.
³² Hobbes, above n 29, ch 30. See Skinner, above n 3, 118.
³³ Hobbes, above n 29, 1, 9.
³⁴ Ibid, 65.
³⁵ Skinner, above n 3, 126.
³⁶ Consider, eg, Rousseau’s argument in The Social Contract that droit politique is a type of law
that regulates the relation of ‘the sovereign to the state’: see above ch 4, 108.
³⁷ Post, above n 22, 310.
such as Kant, Fichte, and Hegel.³⁸ It continued to dominate political speculation
in Germany throughout the nineteenth century, leading to the emergence of a
distinct field of study, Staatslehre.
III. Staatslehre
Conditions permitting the emergence of the field of knowledge known as

Staatslehre were peculiar to the German situation. The political condition of
Germany had been the subject of extensive debate during the late-eighteenth cen-
tury. At the beginning of the nineteenth century, for example, Hegel had opened
his essay on The German Constitution with the lapidary words: ‘Germany is no
longer a state’.³⁹ These debates came to a head in 1806, when Napoleon defeated
the Austrians, and the Holy Roman Empire of the German Nation was formally
dissolved. After Napoleon was eventually defeated in what became known as
the wars of liberation, one issue loomed large: given the arousal of the forces of
nationalism during those wars, how—and in what form—might a sense of polit-
ical unity be established throughout the German lands?⁴⁰ In these circumstances,
discussion of questions of nationalism, fragmentation, and political form focused
centrally on the concept of the state.
The subject of Staatslehre that emerged during the nineteenth century initially
treated the science of the state as a single discipline embracing political theory,
sociology, and law. Illustrative of the movement is the work of Karl von Rotteck,
which ‘shows with particular clarity the lines of connection . . . between the nat-
ural law postulates of the later eighteenth century and so-called early liberalism’.⁴¹
Rotteck rejected the Kantian distinction between the worlds of morality and
nature and incorporated the tensions between norm and fact within his concept
of law.⁴² As Krieger comments, Rotteck’s ‘system of absolute rational principles
³⁸ See above ch 4, 120–127 (Kant) and ch 5, 140–146 (Fichte), 146–153 (Hegel).

³⁹ GWF Hegel, ‘The German Constitution’ [1798–1802] in his Political Writings Laurence
Dickey (ed) HB Nisbet (trans) (Cambridge: Cambridge University Press, 1999), 6–101, 6.
⁴⁰ The issues can be found exemplified in the writings of Baron vom Stein, the greatest German
statesman of the period: see JR Seeley, The Life and Times of Stein, or Germany and Prussia in the
Napoleonic Age (Cambridge: Cambridge University Press, 1878). Stein had argued that the old
bonds between subjects and princes had been dissolved during the period of Napoleonic rule,
and that there was a need for the establishment of a new constitution founded on national unity:
‘I have but one Fatherland, which is called Germany, and since according to the old constitution
I belonged to it alone, and not to any part of it, I am devoted to it with my whole heart. To me, in
this moment of transition, the dynasties are completely indifferent; . . . my wish is that Germany
should become great and strong, that she may recover her independence, her self-government and
her nationality’. Cited in Rupert Emerson, State and Sovereignty in Modern Germany (New Haven,
CT: Yale University Press, 1928), 16.
⁴¹ Michael Stolleis, Public Law in Germany, 1800–1914 (New York: Berghahn Books,
2001), 118.
⁴² Karl von Rotteck, Lehrbuch des Vernunftsrecht und der Staatswissenschaften (Stuttgart: Franck,
4 vols, 1829–1835).
was given the revealing label of “State Metaphysics”, and only after it had been
sifted through “State Physics”—“the empirically given conditions, forces, needs,
influences and counter-influences” which work on the state—does “the merely
ideal nature or abstract essence of states established in the State Metaphysics”
obtain “its more definite, material content” ’.⁴³ Only then ‘does the application of
fundamental law (Recht) to the actual life of the state become possible’.⁴⁴
Rotteck’s scheme reflected a conventional understanding of the nature of pol-
itical jurisprudence. Elements of this approach are still to be found in the litera-
ture of the latter half of the century,⁴⁵ but at this point it is overtaken by a more
conceptualist treatment of the state. The discipline of Staatslehre then assumed
a more positivistic juristic form, especially within the school of Gerber and
Laband.⁴⁶ During the early-nineteenth century, Savigny’s historical school of jur-
isprudence had exerted great influence on German scholarship. Savigny treated
law as a metaphysical phenomenon, but one rooted in the ‘natural’ phenomenon
of the nation whose meaning unfolded historically as the unconscious expression
of the spirit of the people (Volksgeist). His influence left its imprint on many works
of the period, including Rotteck’s. By conceiving law as a metaphysical entity,
however, Savigny’s method produced what amounted to ‘an unhistorical under-
standing of law’.⁴⁷ It has been argued by Böckenförde that ‘not only was it incap-
able of erecting a barrier against the abstractly formal conceptual jurisprudence
of Gerber, Ihering, and Laband’ but that ‘it actually paved the way for it’.⁴⁸
Seeking a more precise specification of the juristic idea of the state, the Gerber/
Laband school sought to develop a new Staatsrechtswissenschaft from which all
extraneous matters—history, politics, and ideas from private law—were elim-
inated. Their more precise specification was based on the claim that the state
possessed a distinctive type of corporate personality created by operation of pub-
lic law. In the introduction to his highly influential work, The Basic Principles of
German Public Law, Gerber argued that the concept of the state as a legal per-
son is not analogous to or derived from private law; it is an autonomous notion,
⁴³ Leonard Krieger, The German Idea of Freedom (Chicago: University of Chicago Press, 1957),
246. (Krieger is quoting from Rotteck, above n 42, vol 2, 45–170, passim, but especially at 66).
⁴⁴ Krieger, ibid.
⁴⁵ See, eg, Ferdinand Lassalle, ‘Über Verfassungswesen’ in his Gesamtwerke Eric Blum (ed)
(Leipzig: Pfau, 1901), vol 1, 40–69. Lassalle argued (at 45) that ‘the actual power relationships
which emerge in every society are the active determinants of all laws and constitutional orienta-
tions of the society’ (‘Die tatsächlichen Machtverhältnisse, die in einer jeden Gesellschaft bestehen,
sind jene tätig wirkende Kraft, welche alle Gesetze und rechtlichen Einrichtungen dieser Gesellschaft so
bestimmt’). See further, below ch 8, 214.
⁴⁶ CF von Gerber, Grundzüge eines Systems des deutschen Staatsrechts (Leipzig: Tauchnitz, 1865);
Paul Laband, Das Staatsrecht des deutschen Reiches (Tübingen: Laupp, 4 vols, 1876–1882; 5th edn, 4
vols, 1911–1914); see Stolleis, above n 41, ch 8; Olivier Jouanjan, Une Histoire de la Pensée Juridique
en Allemagne (1800–1918) (Paris: Presses Universitaires de France, 2005), Pt II, chs 1–2.
⁴⁷ Ernst-Wolfgang Böckenförde, ‘The School of Historical Jurisprudence and the Problem of
the Historicity of Law’ in his State, Society and Law: Studies in Political Theory and Constitutional
Law JA Underwood (trans) (New York: Berg, 1991), 1–25, 12.
⁴⁸ Ibid.
unique to public law.⁴⁹ He argued that the authority of the state was exercised
through the medium of law: ‘The power of the state to will, the ruling power
[Staatsgewalt], is the law of the state’.⁵⁰ Gerber’s framework placed the concept
of the state at the heart of the discipline of public law.⁵¹ Inheriting this positivist
method, Laband fleshed out its doctrinal implications in his influential treatise
on the public law of the German Empire.⁵² But what lay at the heart of this jur-
istic concept?
In the tradition of Staatslehre, there are three fundamental elements in the
concept of the state: territory, ruling authority, and people. By accentuating each
of these elements, three aspects of the state can be presented.⁵³ The first aspect,
Staatsgebiet, is relatively straightforward: it refers to the existence of the state as
a clearly defined, independent territory. The entire world is thus divided into an
arrangement of bounded territories, or states. The second aspect, Staatsgewalt,
refers to the institutional apparatus of rule that secures sovereign authority, both
internally and externally. This is what is meant by the state as an active agency
and, when deploying this aspect, commentators tend to draw a distinction
between state and society. The third aspect, Staatsvolk, connotes the idea of the
state as an aggregation of the members of the association—subjects or citizens—
within that territory.
The first aspect, Staatsgebiet, indicates the way that states as independent
entities engage with one another in the world and provides the basis for creating
a body of public international law. The latter two aspects, of greater relevance to
the task of specifying the character of public law, are more complex. Staatsgewalt
and Staatsvolk suggest that the state is both a governing arrangement and an asso-
ciational entity. From the perspective of Staatsgewalt, the state exercises potestas
(Herrschaft) and individuals are both subjects of the state and objects of rule.
From the perspective of Staatsvolk, however, individuals are citizens who com-
prise the membership of the state and are the ultimate source of political power.
The German tradition of state theory reached its apotheosis in Jellinek’s
Allgemeine Staatslehre of 1900. Building on the formal juristic constructions
of Gerber and Laband, Jellinek sought to reintegrate the historical and socio-
logical aspects of state-formation. He accepted that law is an essential element in
⁴⁹ Gerber, above n 46, 2 (n 1): ‘Die Auff assung des Staates als seines persönlichen Wesens
ist die Voraussetzung jeder juristischen Construction des Staatsrechts. Der rechtliche Begriff der
Staatspersönlichkeit ist aber ein ursprunglicher, und will in seiner Eigenthümlichkeit erfasst werden’.
⁵⁰ Ibid, 3: ‘Die Willensmacht des Staates, die Staatsgewalt, ist das Recht des Staates’.
⁵¹ Ibid: ‘Public law is . . . the doctrine of the power of the state’ (‘Das Staatsrecht ist . . . die Lehre
von der Staatsgewalt’).
⁵² Laband, above n 46. For analysis, see Dieter Grimm, ‘Die Entwickling der Grundrechtstheorie
in der deutschen Staatsrechtslehre des 19. Jahrhunderts’ in his Recht und Staat der bürgerlichen
Gesellschaft (Frankfurt am Main: Suhrkamp, 1987), 308–346, 326–337; Peter C Caldwell,
Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar
Constitutionalism (Durham, NC: Duke University Press, 1997), ch 1.
⁵³ For an analysis of the three aspects, see Georg Jellinek, Allgemeine Staatslehre (Berlin:
Springer, 3rd edn, 1922), ch 13 (394–434).
understanding the state, arguing that without law the idea of the state is incon-
ceivable. But he claimed that it was a mistake to reduce the state entirely to its
juristic form.⁵⁴ In his system, there are two sides to the state: the juristic theory,
which deals with concepts and forms, and the social theory of the state, which
deals with the nature, purposes, and legitimacy of the state.⁵⁵
Although the manner in which Jellinek formulated his two-sided theory
(Zwei-Seiten Lehre) was challenged by German scholars in the twentieth century,
this is not of present concern.⁵⁶ More important is to note how, within his theory,
Staatsgewalt and Staatsvolk, the governing aspect and the associational aspect, are
inextricable. Jellinek argues:
The people in its subjective sense, by virtue of the unity of the state, forms a commu-
nity, i.e. all its individuals are jointly bound in fellowship, they are members of the state.
The state is thus simultaneously a governing and communal association. The governing
and communal elements are bound together into an essential unity in a public corpor-
ate form. The people, in virtue of the governing power of the state, become the object
of imperium and they exist in this sense as many subordinates. But in virtue of the con-
stituent member status of individuals in their quality as elements of states, the people as
subjects become, on the other hand, coordinates. As objects of the governing power, indi-
viduals are duty-bearing subjects, whereas as members of states, they are rights-bearing
subjects.⁵⁷
For Jellinek, the state is a multi-faceted entity that cannot be reduced to any sin-
gle aspect. One of his more pithy formulations defines the state as an ‘associ-
ational entity of settled peoples, invested with incipient powers of rule’.⁵⁸ But
here the relational dimension—between ‘the people’ and ‘government’—must
⁵⁴ Ibid, 11: ‘kein Staat ist ohne Recht möglich, aber es ist ein schwerer Fehler . . . die Staatslehre mit
der Staatsrechtslehre zu identifizieren’ (‘no state without law is possible, but it is a grave mistake . . . to
identify state theory with state-law theory’).
⁵⁵ Ibid: ‘Der Staat ist einmal gesellschaftliches Gebilde, sodann rechtliche Institution. . . . Die
allgemeine Staatslehre insbesondere hat demnach zwei Abteilungen: die allgemeine Soziallehre des
Staates und die allgemeine Staatsrechtslehre’ (‘The state is at once a social entity and a legal institu-
tion. . . . General state theory has two parts: the general social doctrine of the state and the general
state law doctrine’).
⁵⁶ See Stolleis, above n 41, 443–444. See further below ch 8, 216–221.
⁵⁷ Jellinek, above n 53, 408: ‘Das Volk in seiner subjektiven Qualität bildet vermöge der Einheit
des Staates eine Genossenschaft, d.h. alle seine Individuen sind miteinander als des Staates Genossen
verbunden, sie sind Mitglieder des Staates. Der Staat ist somit zugleich herrschaftlicher und genos-
senschaftlicher Verband. Das herrschaftliche und genossenschaftlicher Element ist in der staatlichen
Körpershaft zur notwendigen Einheit verknüpft. Vermöge der Herrschaft der Staatsgewalt ist das Volk
Objekt des Imperiums und besteht in dieser Richtung aus lauter Subordinierten, vermöge der gleichen
Stellung der Individuen in ihrer Eigenschaft als Elemente des Staates als Subjektes hingegen aus lauter
Koordinierten. Die Individuen als Objekt der Staatsgewalt sine Pflichtsubjekte, als Glieder des Staates
hingegen Rechtssubjekte’.
⁵⁸ Ibid, 180–181: ‘Der Staat ist die mit ursprünglicher Herrschermacht ausgerüstete Verbandseinheit
seßhafter Menschen’. See the helpful discussion in Duncan Kelly, The State of the Political: Conceptions
of Politics and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann (Oxford:
Oxford University Press, 2003), 100–103.
be emphasized: if the state is an expression in juristic terms of social relations
(of rights and duties), then these relations are intrinsically political. The state, in
short, is an expression of the realm of the political. Whenever we invoke the con-
cept of the political, Jellinek argues, we have already entered into the imaginary
of the state.⁵⁹
The multi-faceted notion of the state developed in the tradition of Staatslehre
has been widely recognized in western thought. It is clearly expressed in modern
French doctrine, illustrated in the opening of Carré de Malberg’s classic trea-
tise where he explicates these three constituent elements of the state.⁶⁰ In the
French tradition, each of these elements is accorded a distinctive meaning and
function. In post-revolutionary France, the territory was declared to possess an
absolute, almost sacred, status.⁶¹ By virtue of the doctrine of national sovereignty
the French people (the ‘Nation’) is the entity in whom ultimately the right of rule
is vested.⁶² And Staatsgewalt or ruling authority occupies a similarly prominent
position, as is illustrated by Esmein: ‘The state is the legal personification of the
nation: it is the subject and underpinning of public authority’.⁶³
The three vital elements of Staatslehre also manifest themselves in Anglo-
American jurisprudence. In the American case of Texas v White, one of the lead-
ing judgments on the status of the southern states during civil war, the Supreme
Court had to draw a distinction between state and government for the purpose
of ruling that, although the government of Texas had broken unconstitutionally
with the Union, the state of Texas remained. Declaring that it had become the
duty of the United States to provide for the restoration of constitutional govern-
ment, the Court held that:
[The state] describes sometimes a people or a community of individuals, united more or
less closely in political relations, inhabiting temporarily or permanently the same country
[Staatsvolk]; often it denotes only the country or territorial region, inhabited by such a
community [Staatsgebiet]; not infrequently it is applied to the Government under which
the people live [Staatsgewalt], at other times it represents the combined idea of people, terri-
tory and Government. . . . In the Constitution the term State most frequently expresses the
combined idea just noticed of people, territory and Government. A state in the ordinary
sense of the Constitution, is a political community of free citizens, occupying a territory
⁵⁹ Jellinek, above n 53, 180: ‘ “Politisch” heißt “staatlich”; im Begriff des Politischen hat man bereits
den Begriff des Staates gedacht’.
⁶⁰ Raymond Carré de Malberg, Contribution à la Théorie générale de l’État (Paris: Sirey, 1920),
vol 1, 2–7.
⁶¹ See, eg, the French Constitution of 1791, Art 1, title 2: ‘Le royaume est un et indivisible’. By
a unanimous vote in 1792, the French National Convention declared that whoever should seek
to break the unity of the French republic or to detach its integral parts for the purpose of uniting
them to the lands of a foreign power would be punished by death: see Westel W Willoughby, The
Fundamental Concepts of Public Law (New York: Macmillan, 1924), 66.
⁶² See Carré de Malberg, above n 60, vol 2, 152–197.
⁶³ Adhémar Esmein, Eléments de droit constitutionnel français et comparé (Paris: Sirey, 7th edn,
1921), 1: ‘L’Etat est la personnification juridique d’une nation: c’est le sujet et le support de l’autorité
publique’.
of defined boundaries, and organized under a Government sanctioned and limited by a
written constitution, and established by the consent of the governed.⁶⁴
But even in Victorian Britain, where the concept was commonly regarded as
otiose,⁶⁵ standard legal texts make use of the Staatslehre formulation. In his lead-
ing work on the British constitution, for example, Anson stated that: ‘When we
talk of the State, we often use the term with some uncertainty as to its meaning.
Sometimes the expression is used as equivalent to a whole community [Staatsvolk],
or independent political society [Staatsgebiet]. Sometimes it is limited to the cen-
tral force, or sovereign, in that society [Staatsgewalt]’.⁶⁶
The three constituent elements of the state formulated in German scholarship
have been widely adopted in European jurisprudence. What is not always expli-
citly acknowledged, however, is that although the concept embraces these various
aspects, the state—especially in its juristic sense—is not reducible to any single
aspect. The state is ‘an abstract entity above and distinct from both government
and governed’.⁶⁷ So it must remain, as the key concept underpinning the sphere
of the political.
In the juristic sense, as an abstract term encompassing three aspects of terri-
tory, ruling power, and people, the state is the correlative expression of sovereign-
ty.⁶⁸ State and sovereignty are each representations of the autonomy of a political
sphere, with the concept of the state articulating the main elements of that sphere
(territory, people, and institutional apparatus) and sovereignty symbolizing its
absolute authority. This concept of the state performs an ontological function: it
is presupposed in order to provide access to modern political reality.⁶⁹ It permits
us to gain access to, and to make sense of, a political world that has been cre-
ated through a collective act of imagination.⁷⁰ This does not mean that the con-
cept reflects some pure truth of being; this is, after all, a constructed world. But,
⁶⁴ 74 US 700 (1869), 720–721.

⁶⁵ See, eg, FW Maitland, ‘The Crown as Corporation’ in his Collected Papers, vol.3 HAL Fisher
(ed) (Cambridge: Cambridge University Press, 1911), 244–270, 253: ‘We cannot get on without
the State, or the Nation, or the Commonwealth, or the Public, and yet that is what we are profess-
ing to do’.
⁶⁶ WR Anson, The Law and Custom of the Constitution, vol. 1: Parliament [1886] (Oxford:
Clarendon Press, 4th edn, 1911), 15.
⁶⁷ JH Shennan, The Origins of the Modern European State 1450–1725 (London: Hutchinson,
1974), 114.
⁶⁸ See Esmein, above n 63, 1: ‘The self-foundation of public law consists in giving to sovereignty,
apart from and beyond the persons who exercise it at any given moment, an ideal and perman-
ent subject or title, which personifies the entire nation: this entity is the state, which herewith is
identical to sovereignty, the latter being its essential attribute’ (‘Le fondement même du droit public
consiste en ce qu’ il donne à la souveraineté, en dehors et au-dessus des personnes qui l’exercent à tel ou tel
moment, un sujet ou titulaire idéal, et permanent, qui personnifie la nation entière: cette personne mor-
ale, c’est l’Etat, qui se confond ainsi avec la souveraineté, celle-ci étant sa qualité essentielle’).
⁶⁹ On this notion of ‘weak ontology’, see Stephen K White, Sustaining Affirmation: The Strengths
of Weak Ontology in Political Theory (Princeton, NJ: Princeton University Press, 2000), ch 1.
⁷⁰ See, eg, Michael Oakeshott, ‘Leviathan: a Myth’ [1947] in Oakeshott, Hobbes on Civil
Association (Indianapolis: Liberty Fund, nd), 159–163.
however contestable the concept may be, the state cannot be avoided in defining
the character of public law.
State and sovereignty are essentially juristic concepts. The sovereign character
of the state means that it is the sole source of law: the state is ‘the fons et origio of
all those laws which condition its own actions and determine the legal relations of
those subject to its authority’.⁷¹ This is evidently the case with respect to positive
law. As has already been argued,⁷² under the conditions of public law there can
be no strict notion of fundamental law. In most regimes, there is, of course, fun-
damental positive law, constitutional provisions which are protected from repeal
by legislatures in the ordinary manner. But although there can be entrenched law
relating to the office of government, there can be no fundamental law binding on
the state. The state—‘the people’—possesses ultimate authority to change all law.
As Rousseau put it, ‘in the State there is no fundamental law which could not be
revoked’.⁷³
If that is axiomatic with respect to positive law, can it not be argued that,
although it is the highest authority with respect to positive law, the state is an
agent for the formulation and enforcement of rules of conduct that are not
entirely created by itself? This is the claim made by today’s anti-positivists who,
if not claiming the higher authority of divine law, then at least argue that the
state is an agent for the ratification of society’s mores, or expresses the ‘spirit of
the people’, or is obliged to respect the ‘inherent reasonableness’ or ‘higher mor-
ality’ of particular prior claims. The common error in arguments of this type is
the reduction of the concept of the state to only one of its aspects: Staatsgewalt,
the institutionalized office of government. The juristic concept of the state must
not be confused with its government: sovereignty and government are distinct.
The conventional values and beliefs of people are of course reflected in the legal
ordering of governing regimes. But such values and beliefs acquire force in public
law only as the ‘will of the people’ or as various claims of right—that is, only once
reinterpreted as aspects of the concept of the state.
IV. Community, Society, State
What mode of association is suggested by the concept of the state? It is, to be

sure, some form of collective association. But the way in which the collective
association of the state varies from other types of group entities is one of the
most obscure questions in political science. Although humans are social animals
that live as members of groups, it is difficult to differentiate between the political
⁷¹ Willoughby, above n 61, 30.

⁷² See above ch 3, 106–107.
⁷³ Jean-Jacques Rousseau, The Social Contract [1762] in The Social Contract and other later pol-
itical writings Victor Gourevitch (ed) (Cambridge: Cambridge University Press, 1997), 39–152,
120.
mode of association and other types of group ordering. In order to specify the
character of the state, two contrasting types of collective association must be dis-
tinguished: community and society.
It would appear that, for both genetic and cultural reasons, humans are not
completely malleable. There is a highly flexible, though nonetheless distinct,
human nature, because ‘we are impelled to eat, drink, copulate, rest, seek crea-
ture comfort, form pair bonds, nurture our offspring, socialize and engage in
status rivalry’.⁷⁴ Does this flexible human nature dictate a particular mode of
collective association? Boehm argues that if we seek an answer in the competing
portrayals of political philosophers such as Hobbes and Rousseau, the debate will
be both interminable and unilluminating. Drawing on an evolutionary context
spanning several million years, he contends that while humans seek autonomy
and harmony, they also possess a strong competitive instinct for domination, and
that natural selection is ‘the agency responsible for both facets’.⁷⁵ Boehm com-
bines the imaginary exercises of Hobbes and Rousseau and argues that there is a
universal drive for domination within the species, that dominance and submis-
sion are constants in all societal types, that ‘for more than five millennia now, the
human trend has been toward hierarchy rather than equality’, and, finally, that
‘the past several centuries have witnessed sporadic but highly successful attempts
to reverse this’.⁷⁶
Boehm’s anthropological analysis helps to situate modern debates about the
character of the state into a longer evolutionary perspective. The core of his argu-
ment is that a basic tension exists between ‘the forces that make for equality and
democracy, and those that make for hierarchy and coercive leadership’, that our
political nature favours the formation of hierarchies, and that egalitarian govern-
ing arrangements are formed not simply from an absence of hierarchy but through
the creation of ‘a special type of hierarchy based on anti-hierarchical feelings’ in
which ‘the flow of power has reversed’.⁷⁷ This is ‘reverse hierarchy dominance’, a
condition in which ‘the pyramid of power is turned upside down, with a politic-
ally united rank and file decisively dominating the alpha-male types’.⁷⁸
Boehm argues that such ‘orthodox hierarchies’ could be replaced by ‘egalitar-
ian hierarchies’ only because of the human resentment of domination, an ability
to form large coalitions, and the capacity of a coalition to suppress the alpha-type
individual. These conditions developed from the human potential for morality or
fellow-feeling. Egalitarianism is thus a cultural invention: ‘it took a species given
to competition, bluffing and fighting to manage to reverse its own hierarchies’.⁷⁹
It also took the formation of moral communities to make the sustainability of
that achievement a possibility. Since egalitarian societies, formed through reverse
hierarchy dominance, are essentially cultural achievements, ideologies occupy a
⁷⁴ Christopher Boehm, Hierarchy in the Forest: The Evolution of Egalitarian Behaviour

(Cambridge, MA: Harvard University Press, 1999), 129.
⁷⁵ Ibid, 149. ⁷⁶ Ibid, 4. ⁷⁷ Ibid, 4, 12.
⁷⁸ Ibid, 66. ⁷⁹ Ibid, 174.
central place in the maintenance of that mode of association. ‘We humans will
never be able to live in relaxed egalitarian societies, in the way that squirrel mon-
keys do much of the time’, he concludes, and it is ‘our capacity for morality, a
most important cultural universal, that enables us to create egalitarianism out of
what otherwise would be despotism’.⁸⁰
This type of analysis places the concept of the state in an evolutionary perspec-
tive. The state is a modern cultural invention and, whatever type of governmental
arrangement is set in place, its underlying motivating principle is egalitarian.⁸¹ It
is evident that these intentional reversed dominance orders can be created only
through strong moral commitment,⁸² and sustained through the exercise of a
powerful will.⁸³ ‘Competition and domination are learned very naturally by our
species’, notes Boehm, ‘and if they are to be suppressed, both vigilance and occa-
sional harsh sanctioning are necessary’.⁸⁴ Further, while the promotion of con-
sensus leads to the diminution of variation within the group, it also amplifies
variation between groups.⁸⁵ So the egalitarian impetus that has driven us to cre-
ate intricate social and political orders based on co-operation has at the same time
enhanced our tendency to wage war, since ‘the potential for intensive genocidal
war would not have arisen had we not invented both morality and the egalitarian
syndrome’.⁸⁶ Consideration of the anthropological roots of human association
can also help us differentiate between three modes of association that have fig-
ured prominently in modern social and political thought: community, society,
and the state.
Observation of the most basic, primordial processes of group formation sug-
gests that some type of community is being formed. Commonly, this is by some
blood-based bonding process, either expressed directly through kinship relations
⁸⁰ Ibid, 252.
⁸¹ Note that early modern political philosophers, such as Grotius, Hobbes, and Locke, all start
from an egalitarian premiss, even in the course of providing elaborate justifications for hierarchical
political or social orderings: see above ch 2, 73–79; cf Rousseau, above ch 4, 112–114.
⁸² See Rousseau, The Social Contract, above n 73, 56: ‘the fundamental pact . . . substitutes a
moral and legitimate equality for whatever physical inequality nature may have placed between
men’. See above ch 4, 114.
⁸³ See Rousseau, ibid, 53: ‘whoever refuses to obey the general will shall be constrained to do so
by the entire body: which means nothing other than that he shall be forced to be free’. See above
ch 4, 115.
⁸⁴ Boehm, above n 74, 227.
⁸⁵ Cf Carl Schmitt, The Concept of the Political [1932] George Schwab (trans) (Chicago:
University of Chicago Press, 1996), 45: ‘The ever present possibility of a friend-and-enemy group-
ing suffices to forge a decisive entity which transcends the mere societal-associational groupings.
The political entity is something specifically different, and vis-à-vis other associations, something
decisive’.
⁸⁶ Boehm, above n 74, 254. He elaborates: ‘It is morality that enables us to shame our males
into putting their lives on the line for the group, while it is the innate altruistic properties that help
to motivate those males to suffer and die in the interest of the rest of the group’. See GWF Hegel,
Philosophy of Right [1821] TM Knox (trans) (Oxford: Oxford University Press, 1952), §324R (see
above ch 5, 154, n 147).
of the tribe or indirectly through rituals of initiation. Communities form an

enclosed space of intimacy and fellow-feeling, generating an enduring sense of
living together as an organism. In his classic study, Gemeinschaft und Gesellschaft,
Tönnies explained that life in community (Gemeinschaft) entailed ‘mutual posses-
sion and enjoyment, and possession and enjoyment of goods held in common’. This
mutuality is driven by a desire to keep what you have and hold them in common:
‘Common goods—common evils; common friends—common enemies’.⁸⁷
Community works through trust and mutual understanding and is promoted
through the development of a common language, which ‘has not, as we all know,
been “invented” or somehow agreed upon as a mere tool for making ourselves
understood; it is the very act of understanding at work’.⁸⁸ Community-forming
processes are reinforced by habit (Gewohnheit) and custom, which both point
‘to what we might call the settling down of ideas and impulses; they have found
a fi xed abode, a home territory’.⁸⁹ But this communal mode of living based on
kinship ties must be bolstered by ‘natural’ or paternal authority or some other
form of emotionally reinforced rulership, such as that which stems from seni-
ority or from charismatic leadership derived from battle. Communities are thus
formed around orthodox patterns of hierarchy. Communities need a ruler who
demands devotion and who provides them with an ‘animate’ point of connection:
‘Community without a centre, leadership without obedience is unintelligible’.⁹⁰
This type of arrangement, Plessner argues, is reproduced in ‘all types of life- and
belief-based communities’ since it fulfils the function of providing ‘a harmony in
an existential modality of life’.⁹¹
Plessner insists that community requires hierarchy because one can only love
something that exists in concrete form. The claim to love a people, or land, or
humanity ‘flatters the individual’s capacity for love and deceives the geniality of
the heart’.⁹² And this, he suggests, explains why communities are formed around
‘an honoured and distinguished individual’, since that person can ‘most easily
unite all the individual strands of love and . . . neutralize the forces pushing away
from each other’.⁹³ ‘Elevated through the qualities of blood, intellect or charisma’,
he elaborates, ‘the person of the father, mother, the teacher and founder, the leader
and hero, the prophet, in short, the ruler, becomes the object of all emotional
relations of dependence and devotion’.⁹⁴ Community is the language of the fam-
ily, the tribe, and the Volk, that is, the people as an association united on ethno-
cultural grounds. It presents itself as a political notion in the specific form of
⁸⁷ Ferdinand Tönnies, Community and Civil Society [1887] Jose Harris and Margaret Hollis
(trans) (Cambridge: Cambridge University Press, 2001), 36.
⁸⁸ Ibid, 33.
⁸⁹ Ibid, 105.
⁹⁰ Helmut Plessner, The Limits of Community: A Critique of Social Radicalism [1924] Andrew
Wallace (trans) (Amherst, NY: Humanity Books, 1999), 85.
⁹¹ Ibid. ⁹² Ibid, 89.
⁹³ Ibid, 90. ⁹⁴ Ibid.
nationalism, the principle ‘which maintains that similarity of culture is the basic
social bond’.⁹⁵ Nationalism, notes Gellner, ‘is neither universal and necessary nor
contingent and accidental’. But it is ‘the necessary consequence or correlate of
certain social conditions, and these do happen to be our conditions’.⁹⁶
Many have highlighted the difficulties and dangers in seeking to reduce pol-
itical association to the idea of community. The history of nations and states is
such that the existence of a nation-state in an ethnic sense is in itself an improb-
able outcome: as Oakeshott put it, ‘no European state (let alone an imitation
European state elsewhere in the world) has ever come within measurable dis-
tance of being a “nation state” ’.⁹⁷ Although equating political association with
the tribe or Volk can provide a strong bond of allegiance, it also carries the danger
of reinforcing orthodox hierarchies. While generating a strong sense of corpor-
ate unity, such as we find in the imagery of the body politic, communitarianism
tends to lead to authoritarianism, dependency, and the deployment of force, both
to enforce a subliminal shared morality and to protect from external threat. The
problem is not with community as such, but with its transformation into an ideal
mode of political association.
There has, in modern times, emerged an alternative mode of association: that
of society. The rise of society is connected to the rise of individualism, and its
mode of association depends on the acknowledgement of a distinction between
private and public spheres of life. Whereas the unity of community requires the
renunciation of a private sphere of individuality, society asserts the necessity of
recognizing a zone of privacy as a condition of human flourishing. The corollary
of establishing a private sphere of individuality is the formation of an impersonal
public sphere, sometimes called civil society, to deal with potential social con-
flicts. The result is a set of autonomous individuals interacting with one another,
normally in pursuit of self-interest, within the framework of game-like social
rules. This is the idea of society as the embodiment of abstract reason. Whereas
community means ‘genuine, enduring life together’, society, claims Tönnies, is ‘a
transient and superficial thing’; whereas Gemeinschaft is ‘a living organism in its
own right’, Gesellschaft is ‘a mechanical aggregate and artefact’.⁹⁸
The notion of civil society that emerges in modernity is ‘a place where
unattached persons meet through the distance of value’.⁹⁹ Social relations take
the form of exchange, with contract being its medium. Through exchange, all
goods come to be measured on a scale of value, and once social relations take on
this abstracted character, there can no longer be any notion of a ‘common good’.
All sociability, Tönnies argues, ‘may be understood as analogous to the exchange
⁹⁵ Ernest Gellner, Nationalism (London: Phoenix, 1997), 3.

⁹⁶ Ibid, 10–11.
⁹⁷ Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human
⁹⁸ Tönnies, above n 87, 19.
⁹⁹ Plessner, above n 90, 151.
of material goods’ and the primary rule of interaction is that of politeness: ‘every-
one appears to be concerned for everyone else and to be esteeming each other as
equals’, whereas in reality ‘everyone is thinking of himself and trying to push his
own importance and advantage at the expense of all the rest’.¹⁰⁰ Plessner makes
a similar claim when suggesting that the public sphere is ‘composed of purely
equal beings, not because they are equal one to each other, but because they are
equal for each other, while in reality every person is different from the other’.¹⁰¹
But this expresses a formal equality that does little to diminish—and might even
reinforce—orthodox hierarchies.
The societal mode of association is marked by the continuous functional dif-
ferentiation of social spheres—economy, education, mass media, science, etc—in
which ‘the individual is finally reduced to starkly equal, simple, elementary units
of labour, like atoms’.¹⁰² Within this social arrangement, it is claimed, an ‘invis-
ible hand’ ensures that, while appearing to work for himself, the individual also
works on behalf of society in general. As presented by Tönnies, this mode of oper-
ation of civil society, based on commercial exchange and the continuous exten-
sion of market processes to all spheres of social life, does not appear enticing.¹⁰³
But, as Plessner argues, a form of human association that values individuality
and tolerates difference must of necessity also value impersonality and lack of
authenticity. Plessner therefore defends the sense of distance, impersonality, and
emotional restraint that characterizes modern society. Rule-governed interaction
becomes a means of participating without too much intimacy. Individuals must
learn to co-operate in society by adopting roles and following rules, a mode of
association requiring the suppression of emotions, the engagement in ritualistic
performance, and the adoption of masks.
One critical question is whether the societal mode of association can generate
the degree of cohesion required to maintain itself. This is a serious problem since,
because the functional differentiation of social spheres is purely conventional,
their immanent dynamic is such that they are constantly breaking through ‘nat-
ural’ boundaries. These sub-systems can be stabilized only by adopting formal
mechanisms, such as the creation of new contracts and pacts. But this inevit-
ably leads to the further systematization of the sub-systems and hence to further
¹⁰⁰ Tönnies, above n 87, 65.

¹⁰¹ Plessner, above n 90, 157.
¹⁰² Tönnies, above n 87, 57.
¹⁰³ Jose Harris, Tönnies’ editor, argues that although Tönnies was influenced by Hobbes, ‘the
impact of state and Society upon the inhabitants of Tönnies’s Gesellschaft was in many respects the
exact opposite of what [Hobbes] envisaged. Whereas in Hobbes’s system, artificial social and pol-
itical institutions tamed and civilised naked human aggression, in Tönnies’s system they fostered
and unleashed it. Whereas Hobbes’s men and women moved out of isolation into sociability, in
Tönnies’s account they moved in the opposite direction. Whereas Hobbesian citizens wore their
“masks” as a sign of political representation, in Gesellschaft the mask served at best as a fig-leaf for
commercial calculation, in its more extreme form as an artificial substitute for the human inner self
or soul’ (ibid, xxvii). But Harris does not address the impact that Rousseau’s work might have had
on Tönnies’ thought: cf above ch 5, 134–139.
suppression of individuality, what Habermas later called ‘the colonization of the
lifeworld’.¹⁰⁴ A regime of formal rules, Plessner argues, is not enough. He claims
that an indeterminate multiplicity of persons can be brought together into ‘a uni-
fied conduct governed by objectively regulated norms’ only through ‘the idea of
ceremony’.¹⁰⁵ Civilization is rooted in ‘the explicit character of artificiality with
which the person surrounds itself’: society evolves through ‘the spirit of play’.¹⁰⁶
For Plessner, the societal mode of association leads to the formation of a bifur-
cated public sphere: ‘an irreconcilability between (1) norm and situation and
between (2) private and “official” person (man and functionary)’.¹⁰⁷ Individuals
conduct themselves ‘in accordance with their inner judgments and intuitions of
fairness and justice and see themselves betrayed by . . . the practice of law’. This is
because ‘the legality of pure value must be sacrificed to the thought of the total
realization of the order’.¹⁰⁸ The same irresolvable tensions reproduce themselves:
between norms and life, between the maintenance of a plurality of individualistic
notions of justice, and between the demands of the situation and the necessities
of the system. Only the arts of diplomacy can manage these tensions. Plessner’s
argument on the tensions inherent in civil society brings us to the third mode of
association: the state.
The state, like society, emerges only within modernity and is uniquely con-
cerned to address the collective claims of modern life. It is formed out of the rec-
ognition that community and society present two competing modalities of life
(the natural v the conventional, the emotional v the rational, kinship v role, the
longing for intimacy v need for social distance), that each possesses a sway over
the modern world without being able to offer a plausible account of collective
action. The state integrates the claims of community and society, albeit from the
singular perspective of the public sphere, while avoiding the necessity of embra-
cing many of their specific truth claims. Whereas community asserts the primacy
of the collective and society the primacy of the individual, the state expresses
the intrinsically relational character of individual and collective. The state, in
Plessner’s words, ‘is the systematization of the public sphere [sc. civil society] in
the service of community and the epitome of measures protecting the commu-
nity in service of the public sphere’.¹⁰⁹
The state can fulfil this role only once the autonomy of the political is postu-
lated. This requires the acceptance of a distinctive grammar and vocabulary: in
place of the member of the tribe on the one hand and the bourgeois subject on
the other, the political sets in place the figure of the citizen. In place of the ethnos
¹⁰⁴ Jürgen Habermas, The Theory of Communicative Action, vol.2: Th e Critique of Functionalist
Reason Thomas McCarthy (trans) (Cambridge: Polity Press, 1987), ch 6.
¹⁰⁵ Plessner, above n 90, 137.
¹⁰⁶ Ibid, 146.
¹⁰⁷ Ibid, 151.
¹⁰⁸ Ibid, 150.
¹⁰⁹ Ibid, 174.
on the one hand and the self-equilibrating rule system on the other, the political
sets in place the unity of the citizenry as (in its distinctive political mean-
ing) a ‘people’ or ‘nation’.¹¹⁰ The political is the place in which decisions must
be made in circumstances where norms often do not bind. This is not because
of a lack of norms, but because of their multiplicity. Plessner summarizes the
situation thus:
Each sphere has its specific authorities for making decisions: community governs itself
according to insight and love, society according to game-legitimated struggle and tact.
No bridge leads between the two spheres. They do not obey a third higher law. And so the
person must govern in an artificial way, as such governance does not occur naturally. He
must create norms where none exist; however, he must do so under standing guidance by
the voice that is reported to him from both sides—by his conscience (the inner evaluative
capacity, self-devotion), and by the factual state of the power-game of interests. On the
imaginary cut between the circle of community and society lies law [Recht] as the unity
of legislation and the dispensation of justice—a unity eternally in the process of change.
The principle of law is sovereignty—the principle according to which the state supports
itself, in terms of which it limits itself and through which it exists.¹¹¹
The return of the human factor within the sphere of the political does not skew
politics towards the communal: that would be to deny the official, ie role-per-
forming, function of actors in the public sphere. But it does indicate how the
state, despite coming into existence contemporaneously with the societal mode
of association, cannot be conceived simply as an instrument of society. Rather,
it asserts itself as an autonomous mode of association. This mode of association
is underpinned by a ‘tragic law’, in that private morality means ‘to be honest
and treat all persons as ends in themselves’, whereas public morality means ‘to
be clever and treat every person as a means’.¹¹² Each reflects a different mode of
association, each is justified ethically, and ‘are to be respected according to the
situation of the thing’.¹¹³ The imperative of the political, concludes Plessner, ‘is
the duty to power, the highest and most profane duties of a life willing, serving
and devoted to the world’ and which justified ‘the right of the state . . . to acquire
¹¹⁰ This leads to an explicitly political idea of the nation which, though drawing on the influ-
ences of race, language, and common history and customs, seeks to assert a distinctively civic
conception of the nation as the citizen-body. This commonly leads to an idealistic expression, as
is illustrated by Ernest Renan, ‘Nation’ in John J Lalor, Cyclopedia of Political Science (New York:
Maynard, Merrill & Co, 1899), II.341.25–26: ‘A nation is a spiritual principle. . . . A nation is a
great solidarity constituted by the sentiment of the sacrifices that have been made, and by those
which the people are disposed to make. It supposes a past; it is, however, summed up in the present
by a tangible fact: the consent, the clearly expressed desire of continuing the common life. The
existence of the nation is (if the metaphor be permissible) a continued plebiscitum, as the exist-
ence of the individual is a perpetual affirmation of life’. See <http://www.econlib.org/LIBRARY/
YPDBooks/Lalor/llCy732.html>.
¹¹¹ Plessner, above n 90, 174–175.
¹¹² Ibid, 179.
¹¹³ Ibid.
and use power, to build . . . order against the eternal rebellion of reason and the
heart’.¹¹⁴
The state, in conclusion, is the mode of association created by a modern
world of competition and role-play and founded on an ambiguous principle
of equality. Th is egalitarianism, the product of ‘moral communities’ based on
ideologies, is shaped by governmental structures that express the principle of
‘reverse hierarchy dominance’. Given the human tendency to form hierarchies,
the establishment of this mode of association must be viewed as a significant,
albeit ambivalent, achievement. The inherent ambiguity within its authority
structure [Staatsgewalt] wavers in the degree to which it draws its support from
the competing modes of community and society. Such tensions hover in the
backgrounds of Oakeshott’s typologies of universitas and societas, Hayek’s dis-
tinction between teleocratic and nomocratic ordering, and Habermas’ account
of system integration and social integration.¹¹⁵ But, however these tensions are
characterized, the state is not simply the instrument of either communal or
societal rule. It is an autonomous mode of association with its source neither in
the primacy of the organism over its parts,¹¹⁶ nor in that of the individual over
the group,¹¹⁷ but in the distinctive set of relations that this mode of association
itself creates.¹¹⁸
¹¹⁴ Ibid, 180.

¹¹⁵ See above ch 6, 163–164.
¹¹⁶ Cf Aristotle, The Politics [c335–323 BC] TA Sinclair (trans) Trevor J Saunders (ed)
(Harmondsworth: Penguin, 1981), 61: ‘It is clear than that the state is both natural and prior to the
individual. For if the individual is not fully self-sufficient after separation, he will stand in the same
relationship to the whole as the parts in the other case do’. See also GWF Hegel, Natural Law: The
Scientific Ways of treating Natural Law, its Place in Moral Philosophy, and its relation to the Positive
Sciences of Law [1802–1803] TM Knox (trans) (Philadelphia: University of Pennsylvania Press,
1975), 112–113.
¹¹⁷ Hegel, above n 86, §182A: ‘the creation of civil society is the achievement of the modern
world . . . If the state is represented as a unity of different persons, as a unity which is only a partner-
ship, then what is really meant is only civil society. Many modern constitutional lawyers have been
able to bring within their purview no theory of the state but this. In civil society each member is his
own end, everything else is nothing to him’.
¹¹⁸ See, eg, Morris R Cohen, ‘Communal Ghosts and other Perils of Social Philosophy’ (1919)
16 Journal of Philosophy 673–690, 682: ‘All are agreed that groups are characterized by some kind
of unity, and the fundamental issue is whether this unity shall be viewed as an entity additional to
the entities unified and of the same kind, or whether it shall be viewed for what it is, as just the uni-
fying relation. The tendency to personify groups . . . is as old as human thought and is in some meas-
ure unavoidable. For we always depend on analogies, and personal analogies give our language a
vividness without which our hearers may be entirely unmoved. But modern mathematical logic has
taught us to avoid the old form of the issue between nominalism and (the older) realism by recog-
nizing the relational character of unity, or at any rate to recognize the different types of unity’. See
further Rodolphe Gasché, Of Minimal Things: Studies on the Notion of Relation (Stanford: Stanford
University Press, 1999), 4: ‘Rather than indicating a deficient mode of being or referring to things
that barely have being, “minimal things” refers here, first, to the smallest, hence most elemental
issues or matters of concern to philosophical thought. Relation, the title suggests, is one of the
most . . . extreme of philosophy’s elemental topics. . . . Relation could thus be considered the most
basic and simple of all philosophical problems’.
V. The State as a Scheme of Intelligibility
We can now return to Skinner’s claim that the concept of the state is a key elem-
ent of modern political discourse. It now seems evident that, while it is right
that the state emerges as ‘an entity which is at once distinct from both rulers and
ruled’,¹¹⁹ his choice of metaphor prevents him from following through the impli-
cations of his argument. Rather than treating the concept simply as the ‘master
noun’ of modern political argument, the state should be conceived as the founda-
tional concept from which the grammar, vocabulary, and syntax of political right
(ie public law) is derived. The state is the entity which offers access to the nature of
modern political reality: the state is, in short, a scheme of intelligibility.
One scholar who grasped the nature of this claim was Foucault. In a series of
lectures given in 1977 on ‘Security, Territory, Population’—his own re-working
of Staatsgewalt, Staatsgebiet, and Staatsvolk—Foucault explains that his topic
concerns the ‘very complex phenomenon of the transformation of Western rea-
son’. In these lectures he seeks to demonstrate how the appearance of what he calls
‘governmental reason’ had given rise to ‘a certain way of thinking, reasoning, and
calculating’.¹²⁰ This governmental reason, he notes, then carried the label ‘pol-
itics’, and it involves ‘a different way of thinking power, the kingdom, the fact
of ruling and governing; a different way of thinking the relations between the
kingdom of Heaven and the kingdom on Earth’. In specifying the character of
governmental reason, Foucault also exposes for consideration the concept of the
state. Governmental reason is distinctive because it ‘delineated the state as both
its principle and its objective, as both its foundation and its aim’. And the state
must be understood to be ‘a principle of intelligibility and strategic schema, or, to
use an anachronistic word . . . a regulatory idea’. The state is ‘the regulatory idea of
governmental reason’.¹²¹
Elaborating, Foucault explains that the state is a principle of intelligibility that
permits access to the rationality of the art of government. The idea of the state
enables us to think systematically about the ways in which inherited institutions
and practices formed an autonomous set of relations:
What is a king? What is a sovereign? What is a magistrate? What is a constituted body?
What is a law? What is a territory? What are the inhabitants of this territory? What is
the wealth of the prince? What is the wealth of the sovereign? All these things began to
be thought of as elements of the state. The state was a way of conceiving, analyzing, and
defining the nature and relations of these already given elements. The state is therefore a
schema of intelligibility for a whole set of already established institutions, a whole set of
given realities. We see the king defined as a character with a particular role . . . with regard
¹¹⁹ Skinner, above n 3, 112.

¹²⁰ Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78
Michel Senellart (ed) Graham Burchell (trans) (London: Palgrave, 2007), 286.
¹²¹ Ibid.
to the state; he is magistrate, judge, etc. So the state appears as the principle of intelligibil-
ity of an absolutely given reality, of an already established institutional whole.¹²²
Foucault contends that what he terms ‘governmental reason’ posits the state both
as ‘the principle for reading reality’ and also ‘as its objective and imperative’.¹²³
The state ‘is organized only by reference to itself: it seeks its own good and has no
external purpose’.¹²⁴ In particular, ‘no positive law, of course, no moral or natural
law, and in the end perhaps no divine law—but this is another question—at any
rate, no law can be imposed on the state from the outside’.¹²⁵
Foucault’s idea of the state owes a great deal to Hegel’s interpretation which,
though highly influential during the nineteenth century, has since been eclipsed.
This is unfortunate, since Hegel’s idea of the state offers a key to understanding
public law. Its influence can even be seen within British political thought, not
commonly regarded as having developed a clear notion of the state.¹²⁶ Consider,
for example, Bosanquet’s treatise on the theory of the state, which follows
Hegel in arguing that the state is ‘not merely the political fabric’ but ‘includes
the entire hierarchy of institutions by which life is determined, from the fam-
ily to the trade, and from the trade to the Church and the University’.¹²⁷ Like
Foucault’s, Bosanquet’s concept of the state indicates that it must be understood
as a scheme of intelligibility. The state, he writes, is ‘the structure which gives
life and meaning to the political whole’; it therefore is not a person or a number
of persons but ‘a working conception of life’.¹²⁸ Recognizing the juristic char-
acter of this claim, Bosanquet similarly notes the necessity of embracing law as
Recht, since this ‘maintains the connection between the law and the spirit of
the law’ and ‘prohibits the separation between positive law, and will, custom or
sentiment’.¹²⁹
During the twentieth century, this philosophical idea of the state sank under
the weight of argument that reduced the state to Staatsgewalt, the institutional
apparatus of rule. Whatever value this might have in political science, it leads
to confusion in public law. If public law forms a coherent arrangement, then
the state is not simply a set of institutions with a monopoly of coercive power
¹²² Ibid, 286–287.

¹²³ Ibid, 287.
¹²⁴ Ibid, 290.
¹²⁵ Ibid.
¹²⁶ The key figures were TH Green and FH Bradley: see TH Green, Lectures on the Principles
of Political Obligation (London: Longmans, 1924); FH Bradley, Ethical Studies [1876] (Oxford:
Oxford University Press, 2nd edn, 1927). See further, Martin Loughlin, ‘The Functionalist Style
in Public Law’ (2005) 55 University of Toronto Law Journal 361–403, 375–382.
¹²⁷ Bernard Bosanquet, The Philosophical Theory of the State [1899] (London: Macmillan, 4th
edn, 1923), 140.
¹²⁸ Ibid, 140–141. Bosanquet’s concept of sovereignty follows on similar lines. Hence, sover-
eignty ‘resides in no one element’ of the state but is essentially ‘the relation in which each factor of
the constitution stands to the whole’. Sovereignty ‘resides only in the organised whole acting qua
organised whole’: ibid, 262.
¹²⁹ Ibid, 240.
(Herrschaft, potestas), but an expression of the political world. This is the state as a
scheme of intelligibility.
This Hegelian idea of the state has recently been elaborated upon by Steinberger.
Contending that the concept of the state as ‘a structure of intelligibility’ means
that it can be reduced to a series of propositions, Steinberger argues that the state
functions as an idea or a composite of ideas.¹³⁰ This, he suggests, is a character-
istic which the state shares with all institutions; that is, institutions should be
viewed as being ‘essentially constituted, and not simply regulated, by ideas’.¹³¹
This institutional analogy helps us to advance the argument.
The London School of Economics, for example, comprises teachers and stu-
dents, researchers and administrators, a set of buildings in the Aldwych, and a
library and various other facilities. But the LSE is not reducible to any one of these
component parts; it can, for example, move location entirely and still remain the
LSE. Some might think that focusing on the group of people who work there
brings us closer to identifying the institution, but the membership comprises a
constantly changing body of people. The LSE may need each of these component
parts to comprise its identity but, as Steinberger rightly emphasizes, these elem-
ents are of secondary significance, and ‘each of the various elements of which the
institution is composed derives its identity from an interpretation of the whole,
i.e., from our sense of the meaning of the institution qua institution’.¹³² The LSE
is an idea, a composite of scholarly and educational beliefs and principles, and it is
the idea itself that confers meaning on its component parts.
To say that an institution—whether the LSE or the state—is essentially a set
of ideas captures an important truth,¹³³ but not the whole truth. Although insti-
tutions are constituted by ideas, they cannot be reduced simply to that set of
ideas. If an institution is to exist, these ideas must be set to work in the material
world. The ideas must in some form or other animate, guide, and give meaning
to the workings of the component material entities. The existence of an institu-
tion thus ‘presupposes some kind of embodiment’.¹³⁴ These constituting ideas
cannot remain purely abstract; they work through the principle of ‘necessary
embodiment’.¹³⁵
This renders the institution of the state highly complex. If the essence of an
institution is its constituting ideas, it acquires meaning only when those ideas
have been specified with precision. A complicating factor is that people regularly
disagree about the meaning of the constituting ideas of institutions to which they
¹³⁰ Peter J Steinberger, The Idea of the State (Cambridge: Cambridge University Press, 2004),
13–14.
¹³¹ Ibid, 16.
¹³² Ibid, 18.
¹³³ This claim to the primacy of the idea reflects Fichte’s thought: see above ch 5, 140–146.
¹³⁴ Steinberger, above n 130, 25.
¹³⁵ Ibid, 26, citing Charles Taylor, Hegel (Cambridge: Cambridge University Press, 1975),
82–83.
hold allegiance. And if this is true of institutions in general, it is self-evidently the
case with respect to the state. The constituting ideas—those that seek to specify
its distinctive mode of association—remain matters of considerable ambivalence
and controversy.
This difficulty is further compounded by the principle of embodiment, since
the material setting in which the idea of the state is set to work—the extent, loca-
tion, and resources of the territory, and the customs and cultures of the peoples
who comprise its members—not only have a significant impact on the ways in
which the idea can be explicated, but will also re-shape the meaning of the idea
itself. Steinberger expresses this problem thus:
The relationship of the state to the paraphernalia of the state is a complicated
affair. . . . There is no state—there are no institutions—without embodiments. The ideal
and the physical, thought and object, are mutually dependent, sharply distinct and yet
utterly inseparable; and this creates serious theoretical difficulties, for when things are
inseparable, they can be hard to differentiate in practice. Although the idea is the essence
and embodiment the accident, their organic connectedness means that it is not always
easy to distinguish with confidence that which is primary from that which is secondary,
the core from the periphery.¹³⁶
Although Steinberger is essentially correct, we should not permit the language he
uses—essence and accident, primary and secondary, core and periphery—to lead
us back into linear thinking. However strong the drive to seek a stable resolution,
the tension between idea and materiality can be expressed only in the language of
relationality.¹³⁷
We arrive, then, at a less than simple conclusion. The concept of the state is the
entity that gives us access to the nature of modern political reality and provides
the key to understanding the nature of public law. It forms a scheme of intelli-
gibility. If the state is defined as ‘the autonomous organization and activation
of social co-operation within a territory’ comprising three constituent elements
of territory, people, and institutional form,¹³⁸ then it cannot be reduced to any
of its constituent parts. In this sense, the state is an institution: it is both an idea
and the instantiation of that idea. Through an exercise of representation,¹³⁹ it
brings into existence a comprehensive way of seeing, understanding, and acting
in the world. The state cannot exist only as an abstract idea; it must also be set to
work. And in practice the scheme of intelligibility it discloses is highly complex,
not least because of the tension between freedom and belonging that the scheme
discloses.
¹³⁶ Ibid.
¹³⁷ See above n 118.
¹³⁸ Herman Heller, Staatslehre [1934] in his Gesammelte Schriften (Leiden: AW Sijthoff, 1971),
vol 3, 79–395, 310.
¹³⁹ See Loughlin, above n 18, ch 4.
8
The Constitution of the State
The authority of the state, it has been argued, is absolute. Being itself the source
of law, no concept of fundamental law that binds the state can exist. Those who
appeal to ‘higher’ law—whether divine, natural, or customary law—do so only
by treating the state as an institutional apparatus of rule, that is, by reducing the
concept to just one of its aspects. The state is not simply an institutional arrange-
ment; in its juristic meaning, it is a scheme of intelligibility. The question then
arises: what is the nature of this scheme?
The means by which the question is to be addressed should now be clear: the
nature of the scheme can be explained only through the medium of law. But
this type of claim often leads to error: although this scheme of intelligibility is
revealed through law—specifically, public law—by public law here is meant droit
politique or Staatsrecht. This understanding gets blurred because of a generalized
usage of the term ‘law’. Stein, for example, may have been basically correct when
he suggested that ‘law is essentially an element in the organism of the state; it
therefore takes form from the life of the state, and its value is dependent upon
whether it accords with the state in its fundamental idea and specific manifesta-
tions’.¹ But even Stein, one of the most astute nineteenth-century German schol-
ars of the state, fails fully to bring out the distinction here between positive law
and Staatsrecht. Only once Staatsrecht is recognized as the concept of the state
made manifest, can the basic question be reformulated: how is the state consti-
tuted? Alternatively, does the state have a constitution?
I. The Concept of the Constitution
The most detailed and profound analysis of the various concepts of the term ‘con-
stitution’ is Schmitt’s Constitutional Theory, Part I of which examines its various
usages and promotes a distinctive understanding.² Schmitt’s treatment deserves
¹ Lorenz von Stein, ‘Zur Charakteristik der heutigen Rechtwissenschaft’ 1841 Deutsches
Jahrbuch für Wissenschaft und Kunst 377; cited in Ernst-Wolgang Böckenförde, State, Society and
Liberty: Studies in Political Theory and Constitutional Law (New York: Berg, 1991), 5 (n 14).
² Carl Schmitt, Constitutional Theory [1928] Jeff rey Seitzer (trans) (Durham, NC: Duke
University Press, 2008).
210 The Constitution of the State
close examination. He begins his study by rejecting the most general sense of
the concept, that is, the constitution as the essence of the thing. Since all people,
things, and associations could be said to have a constitution in this sense, Schmitt
dismisses the idea as yielding no precise meaning. A clear concept emerges only
when the term ‘constitution’ means the constitution of the state. Schmitt engages
in a systematic analysis of this concept of the constitution, distinguishing both its
existential and normative meanings and between what he calls the absolute and
relative concepts of the constitution.
Schmitt’s account highlights many of the ambiguities that have arisen in our
understanding of the constitution, clarifying much of the confusion that sur-
rounds it. Although his mode of analysis draws too sharp a distinction between
existential and ideal understandings, ultimately failing to provide a convincing
account, his investigations are important. In particular, Schmitt’s analysis helps
us draw a clear distinction between two concepts of the constitution which are
fundamental to the exercise of unearthing the foundations of public law. This is
the distinction between the constitution of the state and the constitution of the
office of government.
In order to explain its significance, we must first follow Schmitt in making a
distinction between the absolute and relative concepts of the term ‘constitution’;
since our key objective is to identify the constitution of the state, we can then dis-
pose of the relative concept. This relative concept of the constitution has arisen
because of the modern tendency to think of constitutions as formal documents.
Such written constitutions have, for a variety of reasons, come into existence at
particular moments in time. Although in the early stages of constitution-mak-
ing these processes were often treated as codifications of existing constitutions,
the written constitution was eventually itself taken to be ‘the constitution’. The
constitution is thus assumed to be a text, the text is treated as a statute, and, in
the course of time, the constitution is conceived as a document containing a set
of individual constitutional laws. These modern developments, Schmitt argues,
lead to what he calls relativization.
Relativization of the constitution means that ‘the concept of the constitution
is lost in the concept of individual constitutional law’.³ That is, there is a ten-
dency to treat provisions contained in written constitutions, ipso facto, as con-
stitutional provisions. This is wrong: there are, Schmitt notes, many provisions
in constitutional documents that are in no sense concerned with the fundamen-
tals of the constitution of the state. Provisions that, for example, establish state
school teachers as civil servants, or require the preservation of theological fac-
ulties in universities, or require notification to be given before holding assem-
blies are simply ‘statutory regulations, which became constitutional laws when
incorporated into “the Constitution” ’.⁴ They are treated as ‘fundamental’ only
³ Ibid, 71. ⁴ Ibid, 67.

within an ‘approach to law that is indiscriminately formalistic and relativistic’.⁵
The formal definition of the constitution reduces the constitution to a series of
written laws. What Schmitt here refers to as relativization has close parallels with
the emergence of the constitution of government, in contradistinction to that of
the constitution of the state.
The point Schmitt makes is that the relative concept of the constitution dis-
torts understanding of the nature of the activity. The absolute concept of the
constitution is, by contrast, not a merely formal condition. It is a substantive con-
dition, one that directs us towards the constitution of the state. But before focus-
ing directly on the constitution of the state, it is necessary to distinguish between
two absolute senses of the concept of the constitution. Although in its most basic
meaning, the absolute concept of the constitution of the state refers to the polit-
ical unity of the people, Schmitt distinguishes between the existential and ideal
senses of the concept. Only through the existential meaning of the concept are
we able to specify the constitution of the state.
The distinction is this: whereas in the ideal sense the constitution is only ‘a
closed system of norms’, the existential concept of the constitution refers to ‘the
complete condition of political unity and order’. The ideal sense therefore desig-
nates ‘not a concrete existing unity’, but only ‘a reflective, ideal one’.⁶ Schmitt’s
two absolute senses of the concept reflect the distinction between fact and norm,
and his argument requires that the purely normativist concept of the constitution
be rejected.
Schmitt accepts that since it regards the constitution as ‘a unified, closed system
of higher and ultimate norms’, the ideal sense addresses the constitution as an
absolute concept.⁷ But although the term ‘constitution’ here denotes unity and
totality, the ideal sense is only an expression of the normative legal framework of
the state. This normativist concept transforms the state into a formal legal order.
The state is conceived as a system of norms that can be traced back to a basic norm
which establishes the system as a closed unity. In this concept, the state exists
only as an imperative entity, a system of norms. And within this system the basic
norm is the constitution.⁸
⁵ Ibid.
⁶ Ibid, 59.
⁷ Ibid, 62.
⁸ It is evident that Schmitt’s comments on this concept are directed primarily at Kelsen’s
state theory: see, eg, Hans Kelsen, Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre
vom Rechtssätze (Tübingen: Mohr, 2nd edn, 1923); Hans Kelsen, Allgemeine Staatslehre (Berlin:
Springer, 1925). Schmitt argues that Kelsen ‘portrays the state as a system and a unity of legal
norms . . . without the slightest effort to explain the substantive and logical principle of this “unity”
and of this “system” . . . The political being or becoming of the state unity is transformed into that
which merely functions, the opposition of being and the normative is constantly mixed up with
that of substantial being and legal functioning. However, the theory becomes understandable when
one sees it as the final product of the . . . genuine theory of the bourgeois Rechtsstaat’ (Schmitt,
above n 2, 63–64). Kelsen’s theory, it might be noted, is neo-Kantian: see above ch 4, 120–127.
In the normativist concept, the constitution is the state. But this equation is
achieved only by reducing the concept of the state to that of the legal order. Once
the state is thus reconceptualized, the relationship between state, sovereignty,
constitution, and law can be reworked: the constitution is the state, the state is
the legal order, the constitution is the basic norm of that legal order, and sov-
ereignty expresses the totality of norms in that autonomous legal order. It then
becomes possible ‘to designate the constitution as “sovereign” ’ or even, as some
advocates of the bourgeois Rechtsstaat have put it, to declare the ‘sovereignty of
reason, of justice, and of other abstractions’.⁹
In opposition to such claims, Schmitt argues that a normative system cannot
validate a positive constitution: the norm ‘can be valid because it is correct’ but
the ‘logical conclusion, reached systematically, is natural law, not the positive
constitution’.¹⁰ That is, the normative concept ends up being justified by a set of
substantive principles. But if, as is proposed in the normative concept, all matters
of history, politics, and morality are eliminated from the field of jurisprudence,
such an approach cannot address questions of authority. Instead, the normative
concept of the constitution presents the constitution as a self-positing and self-
sustaining system of norms.
The constitution can be valid in a positive sense only ‘because it derives from
a constitution-making capacity (power or authority) and is established by the
will of this constitution-making power’.¹¹ This ‘will’ denotes ‘an actually existing
power as the origin of a command’.¹² Schmitt’s argument against normativism is
clear: there can be no closed constitutional system of norms that forms itself as a
systematic unity unless this unity arises out of ‘a pre-established, unified will’.¹³
Rather than being rooted in norms, constitutional unity and order ‘lies in the
political existence of the state’.¹⁴ Taking the Weimar Republic as his example,
Schmitt argues that the unity of the Republic rests not on the 181 articles of
the Weimar Constitution but on ‘the political existence of the German people’;
the ‘will of the German people’, that is, ‘something existential’, establishes ‘the
unity in political and public law terms’.¹⁵ The constitution originates from an act
of will, and specifically from an act of the ‘constitution-making power’.¹⁶ This
brings us to the existential sense of the absolute concept of the constitution.
Schmitt identifies three distinct, though related, existential meanings of the
constitution. These meanings have similarities with the three aspects of the state
expressed in the tradition of Staatslehre.
First, there is ‘the concrete, collective condition of political unity and social
order of a particular state’. The state ‘does not have a constitution, which forms
itself and functions “according to” a state will’; rather, ‘the state is constitution,
in other words, an actually present condition, a status of unity and order’.¹⁷
⁹ Schmitt, above n 2, 63. ¹⁰ Ibid, 64. ¹¹ Ibid.

¹² Ibid. ¹³ Ibid, 65. ¹⁴ Ibid.
¹⁵ Ibid. ¹⁶ Ibid, 75. ¹⁷ Ibid, 60.
Although Schmitt does not refer specifically to territorial exclusivity, this for-
mulation is analogous to the notion of the state as a territorially defined status
of independence and unity; that is, as Staatsgebiet. But there are elements that
may be even broader in its grasp. As is evident from a particular illustration he
presents, Schmitt’s concept of the state underpinning the constitution seems
similar to the idea of the state as a scheme of intelligibility. The song of a choir,
he argues analogically, remains that same even ‘if the people singing or perform-
ing change or if the place where they perform changes’, because ‘unity and order
resides in the song and the score, just as the unity and order of the state resides in
its constitution’.¹⁸
The second existential meaning is that of the constitution as an expression
of a concrete type of ordering, specifically of supremacy and subordination. In
this, the constitution is equivalent to state form, whether monarchy, aristoc-
racy, or democracy. This is not an expression of a legal principle as such, but
of an already existing state of aff airs. In the sense Schmitt intends, once again
‘the state is a constitution’; that is, ‘it is a monarchy, aristocracy, democracy,
council republic, and it does not have merely a monarchical or other type of
constitution’.¹⁹ The political shape taken by the state and reflected in its consti-
tutional arrangements is not simply the product of legal form; it is a lived con-
dition of order. Since Schmitt here focuses on the institutional arrangements of
rule, this second existential meaning of constitution closely parallels the aspect
of the state as Staatsgewalt.
The third meaning incorporates an active element into the concept of the
constitution. This reflects the notion that the state is not simply something that
exists; it is simultaneously an entity that is always emerging. This third meaning
expresses ‘the principle of the dynamic emergence of political unity, of the process
of constantly renewed formation and emergence of this unity from a fundamental
or ultimately effective power and energy’.²⁰ The constitution of the state in this
understanding expresses ‘the free formation of the state will’ and ‘the state order
is the organic expression of the will so formed’.²¹ Since that will ‘incorporates
individuals into the living body of the state organism’ and ‘recognizes itself as
the personal unity of the will of all free personalities that is determined through
self-mastery’,²² this third meaning reflects Schmitt’s understanding of the aspect
of the state as Staatsvolk. By locating the essence of constitutional understanding
not in a static form but in a set of actual relations, this third existential meaning
highlights the relational aspects of constitutions and alludes to the people as a
politically existing entity capable of action.
In emphasizing the existential sense of the absolute concept of the constitu-
tion, Schmitt’s objective is to specify the constitution of the state. He thereby
rescues the concept of the state developed in the German tradition of Staatslehre
¹⁸ Ibid. Cf above ch 7, 205–208. ¹⁹ Ibid.

²⁰ Ibid, 61 (emphasis in original). ²¹ Ibid, 62. ²² Ibid.
from the disintegrative effects of late-nineteenth-century neo-Kantian positiv-
ism promoted by Gerber and Laband and refined by Kelsen. Schmitt brings the
sociological elements back into our understanding of the state, re-connecting
with the earlier work of scholars such as Rotteck and Lassalle, who had argued
for a critical distinction between the formal constitution and the true constitu-
tion of a state. In his celebrated lecture in 1862 on the nature of constitutions, for
example, Lassalle claimed that while the formal constitution (what Schmitt calls
either the relative or the normativist meaning) consists of the rules written down,
the material constitution as ‘fundamental law’ (the existential meaning) expresses
‘the actual power relationships which exist in a given society’.²³ And although
power relations are generally given written expression, Lassalle argued that the
written constitution is an adequate formulation ‘only in the one case . . . when it
corresponds to the real constitution, the real power relationships which exist in
the country’.²⁴
Schmitt argues that the concept of the constitution rests on a distinction
between the constitution and constitutional law. Constitution-making, he
argues, is not merely an exercise in norm construction; it requires the forma-
tion of a political unity. This existential concept of constitution is analogous to
the basic political pact (the social contract) which founds a political unity (the
state). It must always be distinguished from the particularities of an institutional
form of government, that which may be called the constitution of the office of
government.²⁵
The significance of this distinction is revealed when we consider Schmitt’s
claim that ‘new forms can be introduced without the state ceasing to exist, more
specifically, without the political unity of the people ending’.²⁶ The founding of
new states, such as the United States in 1775, or revolutionary changes in polit-
ical order, such as in France in 1789 and Russia in 1918, might cause us to think
that the establishment of a new constitution always leads to the founding of a new
state, but this is not the case. When, for example, the Weimar Republic was estab-
lished, the decision was made by the German people ‘by virtue of its conscious
²³ Ferdinand Lassalle, ‘Über Verfassungswesen’ in his Gesamtwerke Eric Blum (ed) (Leipzig:
Pfau, 1901), vol 1, 40–69, 45 (see above ch 7, 191, n 45).
²⁴ Ibid, 51. Lassalle’s approach follows in the train of Burke who rejected the idea of a formal
constitution, a ‘scheme upon paper’, in favour of ‘a living, acting, effective constitution’: Edmund
Burke, ‘On the Present Discontents’ [1770] in BW Hill (ed), Edmund Burke on Government, Politics
and Society (London: Fontana, 1975), 74–119, 102. The most profound influence, however, was
Hegel: GWF Hegel, The Philosophy of Mind [1830] W Wallace (trans) (Oxford: Clarendon Press,
1971), §540: ‘what is . . . called “making” a constitution is . . . a thing that has never happened in his-
tory . . . a constitution only develops from the national spirit’.
²⁵ Although Schmitt does not refer to Pufendorf on this point, his argument has parallels with
the distinction that the latter draws between the pact to found a state and the pact to establish a con-
stitution: see Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law [1673]
Michael Silverthorne (trans) James Tully (ed) (Cambridge: Cambridge University Press, 1991).
²⁶ Schmitt, above n 2, 75.
political existence as a people’.²⁷ The state—the political unity—preceded the

establishment of a constitutional frame of government.
Schmitt’s distinction between material constitution as political unity and for-
mal constitution as institutional frame has five significant implications for the
latter. First, the formal constitution is not self-authorizing: it is valid only by
virtue of an existing political will that establishes it. Secondly, its validity there-
fore does not rest on its normative correctness or its conceptual unity; rather,
constitutional laws are valid only because they presuppose an underlying ‘mater-
ial’ constitution. Thirdly, it follows that it is an error to treat the formal consti-
tution as ‘an exhaustive codification’, since ‘the unity of the constitution lies not
in the constitution itself, but rather in the political unity, the peculiar form of
existence of which is determined through the act of constitution making’.²⁸ This
point leads, fourthly, to a recognition of the legitimacy of provisions that author-
ize the suspension of constitutional laws during a ‘state of exception’, since such
provisions preserve the material constitution.²⁹ Finally, there are distinct limits
to the formal powers of amendment conferred by provisions in constitutions.
The power ‘should not be taken to mean that the fundamental political decisions
that constitute the substance of the constitution can be eliminated at any time
by parliament’.³⁰ The Reichstag could not therefore use the provision in Article
76 of the Weimar Constitution (stating that the Constitution can be amended
by a two-thirds majority legislative decision of the Reichstag) to transform the
Republic into an absolute monarchy, and a ‘majority decision of the English
[sic] Parliament would not suffice to make England into a Soviet state’.³¹ This,
Schmitt claimed, is a type of pure formalism which is wrong ‘both politically and
juristically’: ‘Only the direct, conscious will of the entire . . . people, not some par-
liamentary majority, would be able to institute such fundamental changes’.³²
²⁷ Ibid, 77.
²⁸ Ibid, 76.
²⁹ See in particular Art 48 of the Weimar Constitution, which stated, in part: ‘If in the German
Reich the public security and order are significantly disturbed or endangered, the President can
utilize the necessary measures to restore public security and order, if necessary with the aid of
armed force. For this purpose, he may provisionally suspend, in whole or in part, the basic rights
established in Articles 114 [freedom of the person/freedom from detention], 115 [inviolability of the
home], 117 [inviolability of correspondence], 118 [freedom of speech and expression], 124 [freedom
of association], 153 [right of property]’. Debate over the function of Art 48 generated a huge litera-
ture, on which, see Peter C Caldwell, Popular Sovereignty and the Crisis of German Constitutional
Law: The Theory and Practice of Weimar Constitutionalism (Durham, NC: Duke University Press,
1997), 107–116. On the use of the Art 48 power, see Clinton L Rossiter, Constitutional Dictatorship:
Crisis Government in the Modern Democracies (Princeton, NJ: Princeton University Press, 1948),
31–73. See further below ch 13, 399–402.
³⁰ Schmitt, above n 2, 79.
³¹ Ibid, 79–80.
³² Ibid, 80. See now Indira Nehru Gandhi v Raj Narain (1975) AIR 1975 SC 1590 (Supreme
Court of India invalidated the 39th Amendment to the Constitution on the ground that it
infringed the basic structure of the constitution); Rory O’Connell, ‘Guardians of the Constitution:
Unconstitutional Constitutional Norms’ (1999) 4 Journal of Civil Liberties 48–75; Gary Jeff rey
Schmitt’s claim about the primacy of the material constitution is significant.
His analysis reveals how ex facie unqualified constitutional provisions are to
be interpreted and also, more generally, the source of coherence of the formal
constitution. But it also suggests that what a formal analysis of constitutional
documents might treat as marginalia, actually have a critical importance. He
illustrates this with reference to the Preamble of the Weimar Constitution, which
states that ‘the German people provided itself this constitution’, and to Article
1.2, which reads: ‘State authority derives from the people’. Such clauses, Schmitt
argues, are not constitutional laws, or statutes, or even framework laws or fun-
damental principles, but neither are they something minor, unworthy of notice.
They are, he claims, ‘more than statutes and sets of norms. They are the con-
crete political decisions providing the German people’s form of political existence
and thus constitute the fundamental prerequisite for all subsequent norms, even
those involving constitutional laws’.³³ These general political statements provide
the bedrock —the substance—on which the structure of legality and normative
ordering in the regime rests.
Schmitt’s Constitutional Theory is a treatise written within the tradition of
Staatslehre. Its primary objective was to rescue the concept of the state from the
relativizing tendencies of late-nineteenth- and early-twentieth-century neo-
Kantian legal positivism. Despite its ostensible focus on constitutional theory, its
main message is that the concept of the constitution refers to the constitution of
the state, and therefore that the nature of the constitution can only be grasped by
first recognizing the state as an existential unity. Schmitt thus draws a clear dis-
tinction between constitution and constitutional law. He is able to do so because
for him constitution refers to the state as a sovereign entity of indivisible author-
ity, reflecting its character as a political unity. As a consequence, the essence of
the constitution is not contained in a statute or a norm, but in the fact that the
constitution is an existential phenomenon giving shape to the political unity of
the state.
II. The Normative Power of the Factual
Is Schmitt able, through his reworking of Staatslehre, to furnish a convincing

juristic account of the constitution of the state? When, for example, Lassalle
extended his argument on the nature of constitutions to claim that ‘constitu-
tional questions are primarily not questions of Recht but questions of power’,³⁴
Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 International

Journal of Constitutional Law 460–487.
³³ Ibid, 78.
³⁴ Lassalle, above n 23, 68: ‘Verfassungsfragen sind ursprünglich nicht Rechtsfragen, sondern
Machtfragen; die wirkliche Verfassung eines Landes existiert nur in den reellen tatsächlichen
Machtverhältnissen, die in einem Lande bestehen; geschriebene Verfassungen sind nur dann von
the limitations of juristic analysis seemed to have been reached. Is this also the
case with respect to Schmitt’s analysis? Schmitt’s basic argument is that it is not
the constitution that sets up the state, but the state that undertakes to establish a
constitution. In his framework, it follows that the state, as a political unity, is an
entity that is factually given, and that ‘the relative homogeneity of the people is
also factually given rather than a normative postulate’.³⁵ But if the state is indeed
an existential entity that precedes the formal constitution, is it possible to talk in
juristic terms about the constitution of the state?
The specifically juristic question is this: how can the sovereign entity of the
state be subject to law? If the state is only a legal phenomenon, as neo-Kantian
theory suggests, then the problem simply evaporates: the state is the legal order
tout court. But if the existential (sociological) aspects of the state are accommo-
dated with law conceived as a norm backed up with coercive power, then we are
faced with a situation in which right is reduced to might.
This is the contradiction that Jellinek sought to resolve with his two-sided the-
ory of the state.³⁶ In Allgemeine Staatslehre, Jellinek argued that the state has two
faces: the normative or legal side (Recht), and the factual or power side (Macht).
The state presents itself both as an expression of the autonomy of the legal order
and as an expression of the ultimate power of command. For Jellinek, these two
faces of the state do not present themselves sequentially, with the existential-
power side appearing before the ideal-normative side. They present themselves
simultaneously and are directly linked: the state may have supreme power to gov-
ern, but this power is limited by the constitution and the laws of the state. This
claim provided Jellinek with the solution to the problem, based on his theory of
auto-limitation (Selbstbeschränkung). His argument takes the form of a series of
precepts:
A power to rule becomes legal by being limited. Law is legally limited power. The poten-
tial power of the ruling commonwealth is greater than its actual power. Through auto-
limitation it gains the character of legal power. Such auto-limitation is not arbitrary, i.e.,
whether the state actually wants to cultivate this is not something that lies at the state’s
pleasure. The limitation is, in type and extent, disclosed through the entire antecedent
process of history. . . . Staatsgewalt is thus not power (Gewalt) per se, but power exercised
Wert und Dauer, wenn sie der genaue Ausdruck der wirklichen in der Gesellschaft bestehenden
Machtverhältnisse sind—das sind die Grundsätze’ (Constitutional questions are basically not legal
questions, but questions of power; the actual constitution of a country exists only in the actual
power relations that emerge in that country; written constitutions are only then of value and
durability when they are the exact expression of the actual power relations that emerge in that
society’).
³⁵ Ernst-Wolfgang Böckenförde, ‘The Concept of the Political: A Key to Understanding Carl
Schmitt’s Constitutional Theory’ in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique
of Liberalism (Durham, NC: Duke University Press, 1998), 37–55, 42–43.
³⁶ See above ch 7, 192–194.
within internal legal limits, and hence legal power. Consequently, all governmental
actions are subjected to legal evaluation.³⁷
The notion that power is transformed into law as it assumes a normative charac-
ter does, of course, suggest a sequence. But this historical development, Jellinek
suggests, has to be reinterpreted juristically. He does this by posing the critical
question of how patterns of human conduct acquire normative force. Here, he
invokes the phenomenon of ‘the normative power of the factual’ (die normative
Kraft des Faktischen).³⁸
This notion of ‘the normative power of the factual’ provides Jellinek with a
method of linking the two sides of his theory of the state and overcoming the gulf
between facts and norms. In this sense, his ideas follow in the steps of Spinoza.
Spinoza not only drew a similar distinction between norm and fact in the frame
of the state—that is, between the right of rule (potestas) and the actual power to
realize governmental objectives (potentia). He also claimed that efficacy is a con-
dition of validity: right exists only so long as the ruler is able to ensure that his
will is obeyed.³⁹ Spinoza was drawing a distinction between the philosophical
and the sociological idea of a norm: whereas a norm is valid in a philosophical
sense when it is identified as an intrinsic part of a coherent scheme, in the socio-
logical sense norms exist only by observing what happens if they are infringed.
Although Jellinek’s approach has similarities, he innovates by offering a specific-
ally socio-psychological explanation.
Jellinek’s psychological method runs as follows. He recognizes that ‘law leads
a double-life’ between what he calls existence and validity (Sein und Gelten), that
is, between being a social force in human conduct and forming a structure of
norms.⁴⁰ But rather than analysing the structure of ethical and legal norms, he
seeks to capture the inter-connectedness between facticity and validity. He does
so by highlighting the ways in which ordinary life is organized and the modes
of human interaction governed. This is a world in which a multiplicity of norms
emerges in an inchoate and unconscious manner. Social norms governing inter-
action, more commonly labelled customs or practices, are best studied, Jellinek
suggests, by analysing how children develop and become socialized.⁴¹ This shows
us how norms become enfolded into the ordinary ways of human interaction.
³⁷ Georg Jellinek, Allgemeine Staatslehre (Berlin: Springer, 3rd edn, 1922), 386–387: ‘Eine
Herrsgewalt wird dadurch zur rechtlichen, daß sie eingeschränkt ist. Recht ist rechtlich beschränkte
Macht. Die potentielle Macht des herrschenden Gemeinwesens ist größer als seiner actuelle. Durch
Selbstbeschränkung gewinnt sie den Charakter der Rechtsmacht. Solche Selbstbeschränkung ist keine
willkürliche, d.h. es ist nicht des Staates Belieben gestellt, ob er sie überhaupt üben will. Durch den
ganzen historischen Prozeß, der ihm vorangegangen, ist dem Staate Art und Maß dieser Beschränkung
gegeben. . . . Staatsgewalt ist daher nicht Gewalt schlechthin, sondern innerhalb rechtlicher Schranken
geübte Gewalt und damit rechtliche Gewalt. Damit sind alle staatlichen Akte rechtlicher Wertung
unterworfen’.
³⁸ Ibid, 337–344.
³⁹ See above ch 3, 102–106.
⁴⁰ Jellinek, above n 37, 138, 337.
⁴¹ Ibid, 337–340.
Jellinek’s method drew on ideas circulating in European thought around the

turn of the century.⁴² It had similarities with the ideas of the institutional the-
orists of public law whose work flourished in France during the same period.
Influenced by an existential philosophy that the world comes first, then aware-
ness of it, and only thereafter human reflection on it, the institutionalists argued
that juridical rules are secondary, existing only to limit the powers of individuals
and institutions, these latter being the true sources of action.⁴³ With respect to
the normative power of the factual, Hauriou, the leader of this school, claimed
that ‘the juridical situations that seem self-sustaining [droit objectif ] are in real-
ity bound to ideas that remain subconsciously in the minds of an undetermined
number of individuals’.⁴⁴ These ideas ‘live in us without our realizing it’, they
‘influence our judgments and our acts’, and they breathe life into objective law.⁴⁵
The general message—one that Jellinek’s method highlighted—is that state
power has normative force essentially by virtue of its existence.
Dahrendorf called Jellinek’s notion of the normative power of the factual ‘the
picture puzzle of legal sociology’ (Vexierbildern der Rechtssoziologie).⁴⁶ And so it
must remain because although the ways in which customs, practices, and norms,
embed themselves into the structure of social reality are central to an inquiry
into the foundations of public law, Jellinek had no more success than Schmitt in
explaining the nature of the relationship between fact and law.⁴⁷
One way in which both Schmitt and Jellinek fail is by maintaining that power
is an empirical phenomenon.⁴⁸ On this point the existentialism underpinning
French institutional scholars marks a real advance.⁴⁹ In the frame of political
jurisprudence, however, political power is a phenomenon generated through alle-
giances amongst and between people.⁵⁰ These allegiances manifest themselves
as sets of practices. The concept of practice is of particular value here because it
blends empirical and normative considerations. It explains the way things are and,
⁴² See Kenneth Dyson, The State Tradition in Western Europe (Oxford: Martin Robertson,
1980), esp 14–18, 174–183. Note also the similarities with Wittgenstein’s later reflections on
how instructions can properly be understood only in the context of a shared form of life: Ludwig
Wittgenstein, Philosophical Investigations GEM Anscombe (trans) (Oxford: Blackwell, 1953), §19.
⁴³ See Albert Broderick (ed), The French Institutionalists: Maurice Hauriou, Georges Renard,
Joseph T. Delos (Cambridge, MA: Harvard University Press, 1970); HS Jones, The French State
in Question: Public Law and Political Argument in the Third Republic (Cambridge: Cambridge
University Press, 1993), ch 7.
⁴⁴ Maurice Hauriou, ‘The Theory of the Institution and the Foundation: A Study in Social
Vitalism’ in Broderick, ibid, 93–124, 94.
⁴⁵ Ibid.
⁴⁶ Ralf Dahrendorf, ‘Die zweite Stufe der Währensreform oder die normative Ohnmacht des
Faktischen’ in Hans Oswald (ed), Macht und Recht (Opladen, 1990), 51; cited in Jens Kersten,
Georg Jellinek und die klassische Staatslehre (Tübingen: Mohr Siebeck, 2000), 369.
⁴⁷ On the problems of Jellinek’s formulation, see esp the analysis by Kersten, ibid, 364–375.
⁴⁸ Note especially Jellinek’s claim, above 217, that ‘the potential power of the ruling common-
wealth is greater than its actual power’.
⁴⁹ Cf Maurice Merleau-Ponty, Phenomenology of Perception [1945] Colin Smith (trans) (London:
Routledge & Kegan Paul, 1962).
⁵⁰ See above ch 6, 164–171.
by dividing action into correct and incorrect forms of behaviour, provides norma-
tive standards of conduct. But the norms in themselves are abstractions: they are
formal abridgements of more thickly textured ways of living that we might call
ethical (Sittlich). As has been argued, political power is generated only through
such ethical engagement. Political power, then, is not an empirical phenomenon
identified through causal laws; it is a dynamic energy generated through modern
political formations—that is, through assemblages of practices.
Adoption of the concept of practice blurs any clear distinction between fact
and norm. Whether the language used is that of custom (Hume), forms of life
(Wittgenstein), Dasein (Heidegger), traditions (Gadamer), tacit knowledge
(Polanyi), practices (Oakeshott), paradigms (Kuhn), discursive formations
(Foucault), habitus (Bourdieu), cultural templates (Geertz), ‘conventions without
convenors’ (Lewis), or ideological morphologies (Freeden),⁵¹ a common theme
emerges: normative claims make sense only as a set of assumptions that individ-
uals acquire tacitly, by virtue of their membership of an existing community. The
concept of practice indicates that norms acquire meaning only by reference to the
culture of the society in which they are made manifest.
Knowledge of a practice is acquired only indirectly through inference, by ana-
logical reasoning, by being inducted by imitative, habitual processes. From the
perspective of ‘hard’ social science, such accounts present difficulties. If norms
acquire meaning only within a particular set of practices (ie, within a culture),
the inquiry is simply pushed back. How are such cultures formed and why do
they vary from one regime to another? This in turn leads to more basic questions.
What type of entity is a culture? How does it perform its function? If ‘practice’
and its analogues offer an understanding of the relationship between fact and
norm, and practice can be understood only in the context of a particular culture,
what may be needed is a social theory of practices. The difficulty is that no one
has been able to identify any objective entity to which the term ‘practice’ refers,
so that practices are essentially metaphors. Consequently, argues Turner, there is
no clear reason why we should accept them as part of the explanation of anything
⁵¹ David Hume, Enquiries Concerning the Human Understanding and Concerning the Principles
of Morals [1748] (Oxford: Clarendon Press, 2nd edn, 1902), 39; Wittgenstein, above n 42; Martin
Heidegger, Being and Time [1927] Joan Stambaugh (trans) (Albany: State University of New York
Press, 1996); Hans-Georg Gadamer, Truth and Method [1960] J Weinsheimer and DG Marshall
(trans) (London: Sheen & Ward, 2nd rev edn, 1989); Michael Polanyi, Personal Knowledge
(Chicago: University of Chicago Press, 1958); Michael Oakeshott, On Human Conduct (Oxford:
Clarendon Press, 1975); Thomas S Kuhn, The Structure of Scientific Revolutions (Chicago: University
of Chicago Press, 2nd edn, 1970); Michel Foucault, The Archaeology of Knowledge AM Sheridan
Smith (trans) (London: Routledge, 1989), ch 2; Clifford Geertz, ‘Ideology as a Cultural System’ in
David E Apter (ed), Ideology and Discontent (New York: Free Press, 1964), 47, 63; Pierre Bourdieu,
The Logic of Practice Richard Nice (trans) (Stanford: Stanford University Press, 1990), 59; David
Lewis, Convention (Cambridge, MA: Harvard University Press, 1969); Michael Freeden, Ideologies
and Political Theory (Oxford: Clarendon Press, 1996).
as central as truth or intentionality.⁵² He may or may not be right.⁵³ General

social theory has been unable to provide any better account of these matters than
a theory of practice; at present, practice-related formulations offer us the best
method available of making sense of the political world.
A practice-orientated approach has the distinct advantage of overcoming some
of the limitations of Jellinek and Schmitt’s attempts to accommodate both nor-
mative and factual dimensions in their accounts of the constitution of the state.
Jellinek was right to argue that the state cannot be understood without consider-
ing both its juristic and sociological sides. And Schmitt was right to argue that
the constitution of the state was not only an objective system of norms but had
an existential reality. There is a way forward. Rather than treating the power of
the state as both absolute in a juristic sense and limited in an empirical sense (ie,
limited by existing economic, psychological, and social relations), or treating its
constitution as formally a structure of norms but materially an existential reality,
we can overcome the fact-norm divide by treating both juristic and sociological
sides as dimensions of a social practice. Further, once the constitution of the state
is conceived as an assemblage of practices, the way is open to explain their work-
ings dialectically. Contrary to Jellinek’s claim that ‘the potential power of the
ruling commonwealth is greater than its actual power’,⁵⁴ for example, it might be
acknowledged that the concept of power cannot be specified without institution-
alization: potential power is actual power.
This argument can be advanced first by addressing the power that forms the
constitution of the state (the constituent power) and then, more generally, of elab-
orating the constitution of the state itself (the public sphere). In advancing this
argument, we are not addressing issues of pure normativity or of sociology: we are
using the methods of droit politique.
III. Constituent Power
The concept of constituent power presupposes the existence of an entity which

is the bearer of political unity and which, through an act of will, constitutes the
office of government. It suggests a distinction between the pact that creates the
political unity and the constitutional contract which establishes the constitution
of the office of government. The power created as a result of the political pact,
⁵² Stephen Turner, The Social Theory of Practices: Tradition, Tacit Knowledge, and Presuppositions
(Chicago: University of Chicago Press, 1994); Stephen Turner, ‘Practice Then and Now’ (2007) 17
Human Aff airs 110–125.
⁵³ Cf Theodore R Schatzki, Social Practices: A Wittgensteinian Approach to Human Activity and
the Social (Cambridge: Cambridge University Press, 1996); Theodore R Schatzki, Karin Knorr
Cetina, and Eike von Savigny (eds), The Practice Turn in Contemporary Theory (London: Routledge,
2001).
⁵⁴ See above 217.
which then authorizes the constitutional contract, is the constituent power. Since
constituent power is a modern concept, generated in the process of shaping mod-
ern political existence, it is generally considered to vest in ‘the people’, a unity
brought to political consciousness and equipped with the power to act by author-
izing the constitutional contract.
Before considering further this notion of the people as constituent power, it
is worth noting that the concept can exist within a purely monarchical theory
of government. On the premiss that original legal authority vests in the crown,
it can be argued that the institutions of government all owe their existence to
the will of the crown, that they derive their powers from that will, and that such
powers as are vested in these institutions can be withdrawn or amended solely
at the will of the crown. Even if a written constitution exists, this constitution
might simply be the product of a bequest by the crown, with the authority of that
constitution ultimately resting on such will.
Monarchical arrangements of this type are not common in modern govern-
mental regimes. The closest illustration is perhaps Imperial Japan. The Meiji
Constitution of 1889 declared that the emperor ‘is the head of the Empire, com-
bining in Himself the rights of sovereignty, and exercises them according to the
provisions of the present Constitution’.⁵⁵ Under the Constitution, the emperor
‘exercises the legislative power with the consent of the Imperial Diet’.⁵⁶ But lest
this provision be treated as a limitation on sovereign authority, it is declared
that the Emperor ‘gives sanction to laws, and orders them to be promulgated
and executed’.⁵⁷ The notion that ultimate authority vests solely in the emperor
is reinforced by the first two articles of the Constitution, which declared that
the Empire of Japan ‘shall be reigned over and governed by a line of Emperors
unbroken for ages eternal’ and that the emperor ‘is sacred and inviolable’. In a
commentary on the Constitution, Prince Ito explained that:
The sovereign power of reigning over and governing the State is inherited by the Emperor
from His Ancestor, and by Him bequeathed to His posterity. All legislative as well as
executive powers of State, by means of which He reigns over the country and governs the
people, are united in this Most Exalted Personage . . . His Imperial Majesty has Himself
determined a Constitution, and has made it a fundamental law to be observed both by
the Sovereign and by the people.⁵⁸
Ito claimed that the emperor possessed much more than a veto power over legis-
lation: in the Meiji Constitution, he stated, ‘a positive principle is adopted, that
is to say, the laws must necessarily emanate at the command of the Emperor’.⁵⁹
⁵⁵ Constitution of the Empire of Japan 1889, Art 4. See <http://www.geocities.com/Tokyo/

Temple/3953/conmeiji.html>.
⁵⁶ Ibid, Art 5
⁵⁷ Ibid, Art 6.
⁵⁸ Cited in Westel W Willoughby, The Fundamental Concepts of Public Law (New York:
Macmillan, 1924), 103–104 (n 1).
⁵⁹ Ibid, 104.
Given this provision, alongside the fact that constitutional amendments could be
initiated only by the emperor, it could be claimed that the constituent power of
the Imperial Constitution of Japan vested in the emperor.
It has been suggested that the Prussian king occupied a similar position,⁶⁰ but
this is more contentious. With respect to the German Empire, Gerber had argued
that although the Kaiser was the embodiment of the abstract personality of the
Staatsgewalt, his authority was not synonymous with that of the state itself.⁶¹
Gerber maintained this position because despite accepting that the rights of
rule formally vest in the monarch, he argued that the state was an entity distinct
from the monarch and the state rested on the natural foundation of the people.⁶²
Consequently, although the monarch was the highest will-institution in the state,
the monarch’s rights were rights of the state. The institution of the monarchy thus
presupposed the existence of the state; the monarch might possess the absolute
rights of rulership, but these exist only to serve the ends of the state.⁶³
The imperial regimes of Japan and Germany no longer exist. But does this
claim about the monarchical constituent power offer insight into the British con-
stitution? After all, the crown or monarch (and there is still some confusion over
these terms) continues to this day formally to represent the Staatsgewalt. It is
the queen’s fiat which makes laws, it is her sentence which condemns, and her
judgments which determine the rights and liabilities of her subjects. The queen,
as head of the government, not only appoints all ministers but also summons,
prorogues, and dissolves parliament. Justice is said to emanate from the mon-
arch: all jurisdiction is exercised in the monarch’s name, and all judges derive
their authority from her commission. And as the fountain of honour, the queen
maintains the power of dispensing honours and dignities. Is this not evidence of
the existence of a monarchical constituent power?
The short answer must be that the British case is altogether different.⁶⁴ This
argument might express the formal position in law, but in the British system
there are numerous practices—conventional understandings—governing how
⁶⁰ See Willoughby, ibid, 102–103.

⁶¹ CF von Gerber, Grundzüge eines Systems des deutschen Staatsrechts (Leipzig: Tauchnitz,1865),
19 (n 1).
⁶² von Gerber, ibid, 19–20: ‘. . . und sonach der Monarch die Persönlichkeit des Staats formell in
seiner Persönlichkeit aufnimmt. Aber diese Wahrheit führt keineswegs zu der Annahme, dass der Staat
selbst nur in Monarchen vorhanden sei. Er besteht vielmehr für sich, und zwar nicht als eine bloss begrif-
fliche Erscheinung, sondern als ein auf natürliche Grundlage, nämlich dem Volke, beruhendes Wesen’
( . . . and thus the monarch formally absorbs the personality of the state in his own personality.
But this truth leads in no way to the assumption that the state itself exists only in the monarch. It
consists of much more in itself and not simply as a conceptual appearance, but instead as a physical
entity built on natural foundations, namely the people).
⁶³ von Gerber, ibid, 29: ‘Die Staatsgewalt ist keine absolut Willensmacht. Sie soll nur dem Zwecke
des Staats dienen, nur für ihn bestehen’ (The ruling power is not an absolute power of will. It ought
only to serve the purpose of the state, only for its existence).
⁶⁴ See further Martin Loughlin, ‘The State, the Crown and the Law’ in Maurice Sunkin and
Sebastian Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford
University Press, 1999), 33–76.
these powers are constitutionally exercised. While the prerogative powers remain
vested in the crown, the queen is advised, directed, and controlled by others.⁶⁵
The legal form remains monarchical but, owing to evolutionary changes reflect-
ing political accommodations not always expressed in positive law, it is impos-
sible to assert that the crown is the ultimate source of constitutional authority.⁶⁶
Today, even in the British system, constituent power—the power to make and
alter constitutional contracts—rests with ‘the people’.
How is the constituent power of the people to be conceptualized? This power
cannot refer to the multitude in their diversity and plurality, since the action of
the multitude leads only to conflict which corrodes the sense of unity that bolsters
the concepts of state and sovereignty. But if the state is merely an idea founded
on the people, rather than actively formed by them, then it is an entirely symbolic
notion that does no meaningful work. The concept of ‘the people’ must surely
incorporate some sense of a collective body, conscious of its political existence
and with the capacity for action.⁶⁷ How can these empirical and symbolic aspects
be reconciled? These questions were extensively debated during the various phases
of the French Revolution,⁶⁸ debates of particular importance since, despite the
existence of the French state (as Staatsgebiet and Staatsvolk) throughout this
period, the Revolution was the critical moment when the people could decide the
particular institutional form of their own political existence (Staatsgewalt).
From amongst the various deliberations, Sieyes, in his influential tract, ‘What
is the Third Estate?’, offers the greatest juristic insight. Sieyes observes that it is
‘impossible to create a body for an end without giving it the organization, forms
and laws it needs in order to fulfil the functions for which it has been established’:
this is called the body’s constitution, and every government must have its con-
stitution.⁶⁹ He argues further that this constitution must build in protections to
ensure that the powers delegated are not used in such a way as to injure the nation,
⁶⁵ Hence the importance of what Dicey called ‘conventions of the constitution’: AV Dicey, Law
of the Constitution (London: Macmillan, 8th edn, 1915), ch 14. Bagehot elaborated on their signifi-
cance in drawing a distinction between the ‘dignified’ (‘those which excite and preserve the rever-
ence of the population’) and ‘efficient’ (‘those by which it, in fact, works and rules’) dimensions
of the constitution: Walter Bagehot, The English Constitution [1867] (Oxford: Oxford University
Press, 2001), 7. ‘The Crown is . . . “the fountain of honour”’, noted Bagehot, ‘but the Treasury is
the spring of business’ (ibid, 11–12). Note, however, that these conventions are ‘vague and slip-
pery’ and ‘they cannot be understood “with the politics left out” ’: GHL Le May, The Victorian
Constitution (London: Duckworth, 1979), 2, 21.
⁶⁶ For an analysis of some of the constituent complexities, see Martin Loughlin, ‘Constituent
Power Subverted: From English Constitutional Argument to British Constitutional Practice’ in
Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and
Constitutional Form (Oxford: Oxford University Press, 2007), 27–48.
⁶⁷ These issues are considered in more detail in Martin Loughlin, The Idea of Public Law
(Oxford: Oxford University Press, 2003), ch 6.
⁶⁸ See Lucien Jaume, ‘Constituent Power in France: The Revolution and its Consequences’ in
Loughlin and Walker (eds), above n 66, 67–85.
⁶⁹ Emmanuel-Joseph Sieyes, ‘What is the Third Estate?’ in his Political Writings M Sonenscher
(trans) (Indianapolis: Hackett, 2003), 92–162, 135.
that is, those who have delegated these powers. But could a constitution be given
to the nation itself? Sieyes is adamant: ‘The nation exists prior to everything; it is
the origin of everything. Its will is always legal. It is the law itself’.⁷⁰
Sieyes’ argument needs to be explicated. He notes that the initial type
of positive law emanating from the will of the nation is constitutional law.
Constitutional laws are called fundamental, he says, ‘not in the sense that they
can be independent of the national will, but because bodies that can exist and
can act only by way of these laws cannot touch them’.⁷¹ This fundamentalism
is therefore an application of the principle that no form of delegated power is
free to alter the terms of its delegation. Sieyes emphasizes that the political pact
is antecedent to the constitutional contract: ‘We have seen how the birth of a
constitution took place in the second epoch’ and therefore it is evident that this
constitution ‘was designed solely for the government’.⁷² ‘It would be ridiculous
to suppose’, he elaborates, ‘that the nation itself was bound by the formalities or
the constitution to which it had subjected those it had mandated’.⁷³ While gov-
ernmental power is legitimate only in so far as it is constitutional, ‘the national
will, on the other hand, simply needs the reality of its existence to be legal. It is
the origin of all legality’.⁷⁴
But could the nation, ‘by a primary act of will which is completely untram-
melled by any procedure’, bind itself thereafter only to express its will in a par-
ticular way? Sieyes answers that a nation ‘can neither alienate nor waive its right
to will; and whatever its decisions, it cannot lose the right to alter them as soon
as its interest requires’. With whom, he asks, would this nation have entered into
such a contract? The answer can only be: with itself. But what, then, is a contract
with oneself? Since both parties are the same will ‘they are obviously always able
to free themselves from the purported engagement’. In short: ‘Not only is a nation
not subject to a constitution, but it cannot and should not be’.⁷⁵
In this analysis, Sieyes argues unequivocally that there can be no concept of
a constitution of the state. The state (or nation) cannot be bound and cannot
bind itself by law. And even if it could, ‘a nation should not subject itself to the
restrictions of a positive form’; that ‘would expose it to the irretrievable loss of its
liberty’, since tyranny ‘needs no more than a single moment of success to bind
a people, through devotion to a constitution’.⁷⁶ A nation must be conceived as
existing only within the natural order or state of nature and the exercise of its will
is independent of all civil forms: ‘Every form is good, and its will is always the
supreme law’.⁷⁷ While government is the product of positive law, the nation owes
its existence to natural law alone.
Sieyes clearly explains the logic of the concept of constituent power as it has
been received in modern discourse. His account is evidently influenced by the
⁷⁰ Ibid, 136. ⁷¹ Ibid. ⁷² Ibid (emphasis in original). ⁷³ Ibid.

⁷⁴ Ibid, 137. ⁷⁵ Ibid (emphasis in original). ⁷⁶ Ibid. ⁷⁷ Ibid, 138.
accounts of Spinoza and Rousseau,⁷⁸ and Sieyes, in turn, influences Schmitt’s
formulation. When Schmitt argues that the state contract must be distinguished
from the constitutional contract, since in the latter ‘the people must be present
and presupposed as a political unity’, whereas the former founds ‘the political
unity of the people in general’, his argument parallels that of Sieyes.⁷⁹ The people,
Schmitt claims, ‘remains the origin of all political action, the source of all power,
which expresses itself in continually new forms, producing from itself these ever
renewing forms and organizations’.⁸⁰
How is this apparently prior existential form of the people to be explained?
One can understand how monarchical constituent power persisted as a residue of
religiously inspired transcendentalism, but this claim is not so easily available to
those claiming that constituent power rests in the people. The problem is analo-
gous to that which Rousseau identified at the foundation: how is a multitude of
strangers able to meet, deliberate, and rationally agree a common framework of
government in the common interest?⁸¹ Within the frame of constituent power,
this is ultimately a problem concerning the nature of collective identity.
Schmitt is clearly right to claim that the normativist treatment evades that
question by positing the existence of normative ordering and eliminating the idea
of ‘the people’ as a collective subject from juristic analysis. But his answer—to
posit a collective subject (the people) as the constitution-making power—has
its own difficulties.⁸² Normativist accounts treat the foundation as a pure act of
representation and thereby absorb constituent power into the constituted power.
But Schmitt argues that constituent power is an expression of the direct power of
the people to give itself a constitutional form.⁸³ Whereas normativism is purely
formal and self-grounding, Schmitt’s existential unity presupposes a mysterious
prior substantial equality of the people. Can we move beyond this opposition
between representation and presence?
The paradox of constituent power can only be overcome by recognizing that,
in Lindahl’s words, ‘the “self” of self-constitution speaks to reflexive identity, to
⁷⁸ See above ch 4, 112–119. Schmitt, above n 2, 128, notes: ‘In some of Sieyès’s writings, the
pouvoir constituant in its relationship to every pouvoirs constitués appears as a metaphysical analogy
to the natura naturans of Spinoza’s theory. It is an inexhaustible source of all forms without taking
a form itself ’. (Natura naturans is an expression that Spinoza uses to suggest ‘nature doing what
nature does’.)
⁷⁹ Schmitt, above n 2, 112. See further Schmitt’s positive analysis of Sieyes: ibid, 126–129.
⁸⁰ Ibid, 128.
⁸¹ See above ch 4, 116.
⁸² The term ‘people’ here is used interchangeably with ‘nation’. Cf Schmitt, above n 2, 127:
‘Nation and people are often treated as equivalent. Nation is clearer and less prone to misunder-
standing. It denotes, specifically, the people as a unity capable of political action, with the con-
sciousness of its political distinctiveness and the will to political existence, while the people not
existing as a nation is somehow only something that belongs together ethnically or culturally, but
not necessarily a bonding of men existing politically’.
⁸³ See Schmitt, above n 2, 289: ‘The idea of representation contradicts the democratic principle
of self-identity of the people present as a political unity’. See further Carl Schmitt, The Crisis of
Parliamentary Democracy [1923] Ellen Kennedy (trans) (Cambridge, MA: MIT Press, 1985).
identity as collective selfhood in contradiction to identity as sameness’.⁸⁴ Lindahl

argues that ‘collective self-constitution means constitution both by and of a col-
lective self’, and this irreducible ambiguity lies at the core of all attempts to found
political community.⁸⁵ This means that there can be no ‘we’ that forms a people
‘in the absence of an act that effects closure by seizing the political initiative to
say what goal or interest joins together the multitude into a multitude, and who
belongs to the people’.⁸⁶ Consequently, ‘although Schmitt is right to assert that
foundational acts elicit a presence that interrupts representational practices, this
rupture does not—and cannot—reveal a people immediately present to itself as a
collective subject’.⁸⁷ Constituent power not only involves the exercise of power by
a people; it simultaneously constitutes a people.
This reflexive argument suggests that those who claim to exercise constituent
power act as an already constituted power; after all, even a constituent assembly
or convention authorized to draft a constitution is an already constituted gov-
ernmental institution. It might be contended that the exercise of constituent
power to establish constitutional ordering can only be said to have existed in
retrospect: constituent power is identified only when ‘individuals retroactively
identify themselves as the members of a polity in constituent action by exercising
the powers granted to them by a constitution’.⁸⁸ But it is also the case, as Lindahl
recognizes, that ‘there is a form of constituent power—a normative innovation
and rupture—that proceeds from a radical outside no political community suc-
ceeds in domesticating’.⁸⁹ Constituent power expresses the fact that unity is cre-
ated from disunity, inclusion from exclusion, reminding us that constitutional
ordering is an ambiguous and provisional achievement. Constitutional ordering
is dynamic, never static.
Emphasizing the reflexive nature of constituent power opens the way for a dia-
lectical interpretation. Rather than treating the constituent power of the people
as an existential unity preceding the formation of the constitution, this power
expresses a dialectical relation between ‘the nation’ posited for the purpose of
self-constitution and the constitutional form through which it can speak authori-
tatively. This collective entity of the people ‘must rely on a past that never has
been present and a future that never will become a present, hence on a past and a
future that elude its control’.⁹⁰ That is, the exercise of constituent power ‘is never
a pure decision that “emanates from nothingness” ’; the people ‘can only act by
re-acting to what, preceding it at every step, never ceases to confront it with the
question, “Who are we?” ’.⁹¹ So, constituent power cannot be understood with-
out reference to constituted power; it acts for the purpose of establishing a con-
stitutional form of government, and it continues to work through the established
constitutional form by questioning and modifying the meaning of that structure.
⁸⁴ Hans Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective
Selfhood’ in Loughlin and Walker (eds), above n 66, 9–24, 9.
⁸⁵ Ibid, 10. ⁸⁶ Ibid, 18. ⁸⁷ Ibid. ⁸⁸ Ibid, 15–16
⁸⁹ Ibid, 22. ⁹⁰ Ibid, 20. ⁹¹ Ibid, 21.
Constituent power and constituted power exist in a dialectical relation, operat-
ing between Staatsvolk (the people as an active political agency) and Staatsgewalt
(the institutional apparatus of governmental authority). Only in this dialectical
form do they together constitute the state—what alternatively might be called
the public sphere.
IV. The Public Sphere
Once the relation between constituent power and constituted power—

between the people and the office of government—is recognized as reflexive, we
can directly address the constitution of the state. There is a clear trajectory of
argument—from Bodin, through Pufendorf, Spinoza, Rousseau, and Sieyes, to
Schmitt—insisting that public law can be understood only once sovereignty is
differentiated from government, the political pact from the constitutional con-
tract, the state from the institutional form, and the constituent power from the
constituted power. This division is axiomatic for public law, but the way the rela-
tionship between the former and the latter concepts is expressed remains con-
tentious. My argument is that these relationships are not causal, but reflexive.
Furthermore, since the state and its institutional form are reciprocally connected,
the confusion that arises when the concept of the state is reduced to one of its
aspects is avoided when we refer instead to the public sphere.
This idea of the public sphere expresses the autonomy of a modern political
world that has been formed in thought and set to work in practice. The public
sphere is thus synonymous with the idea of sovereignty as ‘a representation of the
autonomy of a political sphere’ and the state as ‘a scheme of intelligibility’.⁹² And
just as those formulations suggest the existence of a particular form of representa-
tion, the public sphere carries with it the idea that it is in some sense constituted.
The question is: what are its constitutive elements?
The most basic element is the generally accepted belief that political power
ultimately rests with an entity called ‘the people’ and that it is the people who,
through the constitutional contract, authorize the establishment of the institu-
tions of government. Although the office of government can take a variety of
forms, there are certain constitutive principles through which it operates in the
modern world. Perhaps the most commonly accepted, derived from the ultimate
authority of the people, is that government amounts to a representative office:
governing power is exercised in the name of the people and in the common
interest.
These basic principles indicate that government is an office of trust. It follows
that appropriate mechanisms of authorization (normally through election), check
(through the institutional differentiation of governmental powers), and recall
⁹² See above ch 7, 184–186, 205–208 respectively.

IV. The Public Sphere 229
(through limitation of terms of office) should be set in place. It is, of course, con-
ceivable that the arrangements establish authority on some monarchical figure in
whom the powers of government are entrusted, but in the modern world this is an
unlikely form of government. In general, the constitution of the public sphere is
based on the concepts of representative, responsible, and accountable government.
Since it is implicit in these foundational arrangements that the constitution
of government rests on the principle of consent, another basic element can be
specified. The constitution of the public sphere rests on the figure of the citizen-
subject. Notwithstanding differences in talents, innate strength, or acquired
wealth, individuals in the public sphere are conceived as free and equal agents
who participate in public affairs subject only to those restrictions and limitations
authorized by the laws. Individuals are both bearers of equal rights and subjects
of generally prescribed duties. This element gives us the principle of legal and pol-
itical equality.
From these constitutive principles the idea emerges of a sphere of both absolute
and conditioned power. Political power is absolute, in the sense that the authority
of the people to fashion the political world is unbounded: the authority exercised
through the public sphere cannot be limited by the claims of history, custom,
or inherited religious beliefs. The only constraints are immanent, those that the
people or their representative governors determine to be in the public interest.
This expresses the principle of public autonomy, or sovereignty. In a constituted,
or constructed, world, however, that power is also conditioned by the terms of its
establishment. The most important condition for the establishment of this mod-
ern political reality is recognition of the principle of the equality and liberty of the
individuals who comprise it. This is the correlative principle of private autonomy.
The concept of the public sphere cannot be grasped without acknowledging
the complex character of the political power it generates and sustains. Political
power is not located in the authority of the established institutions of govern-
ment to command; that is merely potestas, rightful authority, or the distributive
aspect of power. The essence of power inheres in the way it is generated, and it is
generated by the drawing together of a people in ties of allegiance to a particular
constitution of the state. If authority is ultimately a product of the consent of ‘the
people’, they have to transcend their manifest differences and material inequal-
ities and participate in this collective exercise of imagination.
This definition of political power has juristic implications. Since power is gen-
erated from the relation between constituent and constituted power it requires
a dynamic conception of law to grasp its significance. In his reflexive account
of constituent power, Lindahl notes that ‘political unity not only acquires exist-
ence through individual acts of self-attribution but also depends on the renewal
of such acts to continue in existence’.⁹³ Th is type of ‘living law’ ensures that the
⁹³ Lindahl, above n 84, 20. Th is point is similar to that made by the Weimar jurist, Smend, who
argued that the state ‘exists and is present only in this process of constant renewal, continuously
posited law can never fully comprehend this power. But since the initiative in giv-
ing meaning to this ‘living law’ rests with the governing institutions, the activity
of governing is always a major factor in public life. From this perspective, those
in authority have an active responsibility to promote what has variously been
called a ‘civil religion’,⁹⁴ or stories of peoplehood,⁹⁵ or ‘in the representation of
the values at each point in history through political symbols such as flags, coats of
arms, heads of state (especially the monarch), political ceremonies, and national
festivals’.⁹⁶
This way of conceptualizing political power means that the conditions of estab-
lishment of the public sphere do not amount simply to limitations on that power.
These conditions simultaneously lead to the strengthening of the state. This point
needs some elaboration. As Bodin was first to demonstrate, sovereignty is a con-
cept concerning the public sphere, that is, the republic or commonwealth. But
there are certain matters of human existence—such as freedom of conscience or
pursuit of religious truth—that are not matters of public concern. One reason for
this is that questions of belief—as distinct from conduct—are beyond the remit
of command. Another is that the imposition of public conformity in matters of
worship undermines the principle of individual liberty and equality. A blend of
principle and efficacy ensures that the modern state withdraws from the region
of truth and belief (matters of private conviction) to concern itself solely with
questions of public conduct. By placing such questions within a sphere of private
conviction, basic disputes over ultimate truth, which had undermined the unity
of a people and engendered instability, were placed beyond the public sphere.
The state must be secular precisely because it is supreme. Absolute supremacy is
freely yielded because the state exists only to address matters of public welfare
and concern.
From this foundational argument, a broader platform of basic liberties—free-
dom of speech, freedom of expression, freedom of association, freedom from arbi-
trary detention—can be justified as constituent elements of the public sphere. In
being-experienced-anew; it exists, to borrow Renan’s famous characterization of the nation, because

of a plebiscite repeated daily’: Rudolf Smend, Verfassung und Verfassungsrecht (Munich: Duncker
& Humblot, 1928), 18; excerpted in Arthur J Jacobson and Bernhard Schlink (eds), Weimar: A
Jurisprudence of Crisis (Berkeley: University of California Press, 2000), 213–248, 218 (‘Er [der
Staat] lebt und ist da nur in deisem Prozeß beständiger Erneuerung, dauernden Nueuerlebtwerdens; er
lebt, um Renans berühmte Characterisierung der Nation auch hier anzuwenden, von einem Plebiszit,
dass sich jeden Tag wiederholt’).
⁹⁴ Rousseau, ‘The Social Contract’ in his The Social Contract and other later political writings V
Gourevitch (trans) (Cambridge: Cambridge University Press, 1997), Bk 4, ch 8.
⁹⁵ Rogers M Smith, Stories of Peoplehood: The Poiltics and Morals of Political Membership
⁹⁶ Smend, above n 93, 48: ‘Das geschieht institutionell durch die Repräsentation des geschich-
tlich-aktuellen Wertgehalts im politischen Symbol der Fahnen, Wappen, Staatshäupter (besonders der
Monarchen), der politischen Zeremonien und nationalen Feste’; excerpted in Jacobson and Schlink
(eds), above n 93, 230. For analysis, see Werner S Landecker, ‘Smend’s Theory of Integration’
(1950–1951) 29 Social Forces 39–48.
part, such fundamental rights explicate the principle of liberty and equality of
persons, that is, the correlative principle of private autonomy on which the pub-
lic sphere is founded. But this is intermingled with an argument from utility: by
placing matters concerning personal identity beyond the public sphere and guar-
anteeing the conditions needed to sustain a vibrant civil society, the authority of
the state is strengthened. Allegiance—the generator of power—is enhanced not
so much when competence is limited but when the conditions for open, account-
able, and responsive government are in place.⁹⁷
The basic principle can be concisely stated.⁹⁸ In seeking to identify the most
basic elements in the constitution of the public sphere, the predominant theme
is that constraints are enabling; apparent limitations on power generate power;
power and liberty are correlative terms. The ways in which these purposes are
achieved vary across different governing regimes. But within the frame of public
law the logic of the discourse remains the same: it is an immanent logic oper-
ating in a manner analogous to Spinoza’s natura naturans—nature doing what
nature does. The elaborate frameworks of modern constitutional contracts do
not impose a set of constraints on the exercise of public power; they establish the
institutional forms through which such power can be generated.
V. Droit Politique as the Constitution of the State
The argument I have been developing is that the constitutive elements of the pub-
lic sphere form the constitutive rules of public law and must be distinguished from
the constitution of the office of government, which amount only to the regulative
rules of a particular regime. By retaining this distinction, the nature of the juris-
tic discourse of public law can more clearly be identified. The first point is that the
public sphere is constituted through a singular type of juristic discourse—that
which we have called Staatsrecht, droit politique, or public law in its distinctive
meaning. In his account of the nature of constituent power, Sieyes suggested that
although the office of government is subject to a constitution, the nation is not.
The nation—the people or the state—is the ultimate source of authority and its
will is always legal. But Sieyes did recognize that prior to the nation, there exists
natural law.⁹⁹ If droit politique is taken to be a form of secularized natural law—
⁹⁷ See in particular the argument of Alexis de Tocqueville, Democracy in America [1835]

Henry Reeve (trans) Daniel J Boorstin (intro) (New York: Vintage Books, 1990), vol 1, 248: ‘the
people . . . obey the law, not only because it is their own work, but because it may be changed if it is
harmful; a law is observed because, first, it is a self-imposed evil, and, secondly, it is an evil of transi-
ent duration’. For analysis, see Stephen Holmes, ‘Tocqueville and democracy’ in David Copp, Jean
Hampton, and John E Roemer (eds), The Idea of Democracy (Cambridge: Cambridge University
Press, 1993), ch 1.
⁹⁸ See above ch 6.
⁹⁹ Sieyes, above n 69, 136–137: ‘A nation is formed only by natural law’.
that which sustains the political world—the public sphere (the state) may be said
to have a constitution.
By distinguishing between droit politique and positive law, the essential con-
ceptual distinction between state and government is retained. When set in a rela-
tional frame, this distinction enables us to resolve the apparent paradox between
state and law that permeates discussion of the subject. Consider, for example, the
problem that Lindahl presents:
. . . the paradox of constituent power indicates that self-constitution begins as the consti-
tution of a political unity through a legal order, not as the constitution of a legal order by
a political unity. Someone must seize the initiative to determine what interests are shared
by the collective and who belongs to it. Schmitt’s explicit denial notwithstanding, ‘polit-
ical unity first arises through the “enactment of a constitution” ’.¹⁰⁰
Although Lindahl may be right about the implications (ie, the necessity of polit-
ical decision), many of the difficulties are removed when it is recognized that ‘the
constitution of a legal order by a political unity’ involves an exercise in positive
law-making, whereas ‘the constitution of a political unity through a legal order’
refers not to the positing of a legal order (in a strict sense) but to the constitution
of political unity through droit politique. Consequently, it is incorrect to say that
political unity arises through the ‘enactment’ of a constitution, since this suggests
an exercise in positive law-making to establish a formal constitution of govern-
ment. Political unity comes about through a different process: the way in which
droit politique works to frame the constitution of the state.
The critical issue is that of explaining how droit politique frames the public
sphere. Schmitt was not so far removed from this explanation as some have sug-
gested. Aspects of his argument indicate that he was thinking in terms of a causal
relationship (ie, the prior existence of a political unity that, through the exercise
of will, establishes a constitutional contract), but other parts of his analysis are
more reflexive. He argued, for example, that ‘the people’ is the ‘formless formative
capacity’ with complete freedom of self-determination, that ‘as an entity that is
not organized, they also cannot be dissolved’, and that ‘their life force and energy
is inexhaustible and always capable of finding new forms of political existence’.¹⁰¹
The language used (formless–formative; cf constituent–constituted) has obvious
reflexive aspects. And despite claiming that the ‘natural form of direct expression
of the people’s will is the assembled multitude’s declaration of consent or their
disapproval, the acclamation’, he also noted that in ‘modern, large states’ this has
changed its form: now ‘it expresses itself as public opinion’.¹⁰²
Schmitt’s argument about public opinion parallels Rousseau’s claim about the
importance of custom.¹⁰³ For Rousseau, this special category of law, which is
impressed in the hearts of citizens, undergirds all others. As the living law that
¹⁰⁰ Lindahl, above n 84, 22. ¹⁰¹ Schmitt, above n 2, 129, 131.
¹⁰² Ibid, 131. ¹⁰³ Rousseau, above n 94, 81. See above ch 5, 133.
sustains the nation in its institutional form, it is in reality ‘the State’s genuine
constitution’.¹⁰⁴ If custom, belief, and opinion are what is meant by the primacy
of expression of the people’s will, then it is anything but fi xed and finished. This is
precisely the point Lindahl makes in arguing that political unity comes not from
a single constituent act but depends on continuous renewal of terms.¹⁰⁵ Although
he is not consistent on this question, Schmitt did incorporate a similarly dynamic
aspect into his concept of constituent power.
The position we are moving towards is that the constituent elements of the pub-
lic sphere are a set of customs and beliefs (ie, practices) that sustain this type of
ordering. This is, of course, only an alternative expression of the argument already
made about the nature of political jurisprudence: that humans are assumed to
be free and equal beings equipped with the collective capacity to determine the
nature of their political existence and to establish institutional frameworks of
government within which power and liberty involve reciprocal relations.¹⁰⁶ It is
this political dynamic expressed as juristic discourse—the discourse of the public
sphere—that produces the constitutional ordering of the state.
The notion of droit politique was widely—if only implicitly—understood
around the turn of the twentieth century when a self-consciously modern idiom
of public law was being advocated in many European regimes. It was given spe-
cific expression by Hauriou, the leading French public lawyer of the period, in his
pivotal concept of directing ideas (idées directrices) that played a creative role in
the shaping of public institutions. Although Hauriou believed in the ‘profoundly
juridical character of the birth, life, and death of institutions’, he argued that posi-
tive legal rules tend to be limiting rules in that they ‘merely delineate the contours
of things’.¹⁰⁷ The generative function, by contrast, is performed by the directing
ideas which shape the character of the institution, and which are revealed ‘in
what concerns fundamental and constitutional rules’.¹⁰⁸
Hauriou noted that ‘the highest forms’ through which the directing ideas of
an institution are expressed ‘are not properly juridical’, but ‘are moral or intel-
lectual’, adding that ‘if they become juridical, they do so as higher principles’.¹⁰⁹
Exemplary of the latter are the Declarations of Rights formulated during the
American and French Revolutions: ‘The declarations express the heart of the idea
of the modern state in what concerns the individualist order that the state has the
mission of protecting in society’.¹¹⁰ These directing ideas sustain the institutions
of government: institutions make legal rules, he suggests, but legal rules do not
make institutions. Directing ideas give meaning to the basic principles of French
public law, which unfold progressively with the power to shape the character of
governmental institutions.¹¹¹
¹⁰⁴ Ibid. ¹⁰⁵ See above 229. ¹⁰⁶ See above ch 6.

¹⁰⁷ Hauriou, above n 44, 122, 114. ¹⁰⁸ Ibid. ¹⁰⁹ Ibid.
¹¹⁰ Ibid, 115.
¹¹¹ See Maurice Hauriou, Précis de droit constitutionnel (Paris: Sirey, 2nd edn, 1929), 73–74.
Hauriou’s writing illustrates the way French institutionalist scholars used the
idea of droit politique to explain the development of public law while recogniz-
ing the relational character of constituent power and constituted power. But the
public law scholar of the period who did most to develop this understanding was
Heller. Although Heller’s work, in particular his magnum opus on Staatslehre,
remained incomplete owing to his death in 1933 at the age of 42, it is evident that
he had specified the tension between positive law and droit politique as the driv-
ing force of public law. Heller argued that a concept of law depends on the idea of
law, which is in no way identical to it. The latter can only be formulated by ‘the
relativization of positive law by supra-positive, logical and ethical (sittliche) basic
principles of law’.¹¹² Against positivists like Gerber and Laband, who had argued
that a state built on opinions and beliefs ‘can only have an unsure and fluctuating
existence’,¹¹³ he claimed that these guiding principles only come from existing
practices. Against both scholars who sought the security of transcendental prin-
ciples and those who reduced law to power politics, Heller argued for a dialectical
understanding of public law in which basic principles emerge as immanent eth-
ical practices that often sit in a relationship of tension with, or contradiction to,
the enacted rules of positive law.
From this dialectical insight, Heller developed a comprehensive theory of the
state,¹¹⁴ understood as ‘the autonomous organization and activation of social
co-operation within a territory’.¹¹⁵ State power (Staatsgewalt) ‘manifests itself
and is maintained by a co-operation between people, which orientates itself to
a common order of rules’.¹¹⁶ In contrast to military power—‘merely a techni-
cal power, which has its purpose determined and gets its legitimation first of all
from the state’¹¹⁷—this political power must be directly orientated towards social
conceptions of justice and legitimacy. State power is always a ‘legally organized,
political power’ and, owing to its intrinsic social function, it ‘must not only strive
for legality in the legal technical sense, but also, for the sake of its self-preserva-
tion, for an ethical justification of its positive legal or conventional norms, i.e. for
legitimacy’.¹¹⁸ State power thus ‘has authority only when the justification of its
¹¹² Hermann Heller, ‘Bermerkungen zur Staats- und Rechtstheoretischen Problematik der
Gegenwart’ [1929] in his Gesammelte Schriften (Leiden: AW Sijthoff, 1971), vol 2, 249–278, 275:
‘ . . . der Begriff des Rechtes kann nicht gebildet werden ohne die keineswegs mit ihm identische Idee des
Rechtes, die letztere aber nicht ohne die Relativierung des positiven Rechtes auf überpositive, logische
und sittliche Rechtsgrundsätze’.
¹¹³ Carl Friedrich von Gerber, Über öff entliche Rechte (Tübingen: Laupp, 1852), 21; cited by
Heller, ibid, 276: ‘Ein Staat der auf Meinungen gegründet ist, kann nur eine sichere und schwankende
Existenz haben’. For discussion of Laband, see Heller, ibid, 269–271.
¹¹⁴ Hermann Heller, Staatslehre [1934] in his Gesammelte Schriften, above n 112, vol 3, 79–395
(‘Staatslehre’). Most of Pt III of this work has been translated by David Dyzenhaus as Hermann
Heller, ‘The Nature and Function of the State’ (1996) 18 Cardozo Law Review (‘CLR’) 1139–1216.
I am indebted to this translation, on which I rely for quotations.
¹¹⁵ Staatslehre, 310; CLR, 1143.
¹¹⁶ Staatslehre, 311; CLR, 1144.
¹¹⁷ Staatslehre, 316; CLR, 1149.
¹¹⁸ Staatslehre, 355; CLR, 1179.
power enjoys recognition’ and this authority ‘is based in legality only insofar as
the legality is founded legitimately’.¹¹⁹
Heller claimed that ‘all the ideologists of force fail to recognize this power for-
mation by law, while conversely all the pacifist ideologists do not want to recog-
nize law formation by power’.¹²⁰ On this basis, he could offer a fresh explanation
of the ‘normative power of the factual’ by means of which ‘a power that, while
for a time existing merely as a matter of brute fact and though experienced as
unjust, succeeds in winning for itself, bit by bit, the belief in its justification’.¹²¹
Although this transformation of normality into normativity is often emphasized,
Heller noted that it is invariably a partial recognition: ‘For alongside this norma-
tive force of the factually normal, a very great and unique significance is due to
the normalizing force of the normative’ since ‘the constitution formed by norms
elevates itself on the foundation of the non-normed constitution, which crucially
contributes to it’.¹²² This relationship between facticity and normativity, Heller
argued, is dialectical, especially since the ‘content and validity of a norm are never
determined merely by its text, and never solely by the standpoints and character-
istics of its legislators, but above all by the characteristics of the norm addressees
who observe them’.¹²³
At the core of Heller’s state theory is a tension not only between the for-
mal and material constitution but also between positive law and droit politique,
the latter concept similar to what Hauriou called idées directrices and which
Heller calls Rechtsgrundsätze. Schmitt recognized a similar distinction, but his
argument was that the absolute constitution rested ultimately on an existen-
tial entity, the political unity of the people. For Heller, this material constitu-
tion could not be understood simply as fact. ‘Every theory that begins with
the alternatives, law or power, norm or will, objectivity or subjectivity’, Heller
contended, ‘fails to recognize the dialectical construction of the reality of
the state and it goes wrong in its very starting point’.¹²⁴ The reason is that
once the ‘power-forming quality of law’ has been grasped, it becomes impos-
sible to understand the constitution ‘as the decision of a norm-less power’.¹²⁵
He argued against the normativists on the ground that ‘efficacy and validity,
the existence and normativity of the constitution, must indeed be logically dis-
tinguished, but they nevertheless apply to the same constitutional reality, in
which the assertion of one always supposes the other at the same time’.¹²⁶ But
he similarly argued against the materialists on the ground that, although a col-
lective political will can be designated as that which determines the existence of
the political unit, ‘without a normative act, a collection of people has neither a
will capable of decision nor power capable of action, and at the very least it has
¹¹⁹ Staatslehre, 355; CLR, 1180. ¹²⁰ Staatslehre, 356; CLR, 1180.
¹²¹ Staatslehre, 356; CLR, 1180. ¹²² Staatslehre, 365; CLR, 1187.
¹²³ Staatslehre, 368–369; CLR, 1190–1191. ¹²⁴ Staatslehre, 393; CLR, 1214.
¹²⁵ Staatslehre, 393; CLR, 1214. ¹²⁶ Staatslehre, 393; CLR, 1214–1215.
no authority whatsoever’.¹²⁷ Heller argued instead that, rather than contradict-
ing one another, the existential and normative aspects of constituent power
remain mutually dependent.
In his state theory, Heller specified that the constitution of the state is distinct
from the constitution of government. He also identified the juristic discourse
through which this constitutive arrangement can be expressed. He argued that
the concept of constitution in its substantive sense, that dealing with the ‘total
situation of the political unit’, is of little value because it ‘includes all natural and
cultural conditions of the state unity without any worthwhile differentiation’.¹²⁸
Instead, he advocated the adoption of what he called ‘the second realist-scientific
constitutional concept’, in which ‘a basic structure of the state is judged to be
fundamental from a particular historical-political standpoint and is singled out
as the relatively permanent structure of the unity of the state’.¹²⁹ Heller suggested
that two juristic concepts of the constitution correspond to these sociological
concepts. The first incorporates ‘all the legal norms contained in the constitu-
tional instrument together with all other laws of the state order that comply
with the constitution’, although this again is too broad. More useful is a basic
re-ordering of that part of the substantive constitution that is judged to be foun-
dational. But this also is of limited use since ‘a concrete historic constitution has
never exhibited a closed logical system, resting on suprahistorical axioms’.¹³⁰ For
Heller, this suggests the need for a fifth concept, the formal constitution, under-
stood as ‘the totality of the laws fi xed in writing in the constitutional instrument’,
necessary because there is never a complete coincidence between the substantive
and formal constitution.¹³¹
Tensions between these contrasting concepts of the constitution of the state
are paralleled by tensions between concepts of law. Heller’s account of the consti-
tution of the state reconstructs the argument about facticity and normativity in
order to demonstrate that power and law (power and liberty) are mutually con-
stitutive and reciprocally dependent. But by law here is meant droit politique, ‘the
fundamental principles of law which are foundational of positive law’.¹³² These
basic principles cannot generate particular legal decisions and are only indicative
of general orientation. Consequently, ‘there is established in the modern state a
necessary and untranscendable conflict between legality and legal certainty’.¹³³
This reflects the tension between positive law and droit politique. The conflict is
made indispensable ‘because, within a vital people of a particular state, complete
agreement can never rule over the content and application of valid fundamen-
tal legal principles’.¹³⁴ And it ‘is untranscendable because both the state and the
¹²⁷ Staatslehre, 394; CLR, 1216. ¹²⁸ Staatslehre, 390; CLR, 1211.
¹²⁹ Staatslehre, 390; CLR, 1211. ¹³⁰ Staatslehre, 391; CLR, 1212.
¹³¹ Staatslehre, 391; CLR, 1212–1213. ¹³² Staatslehre, 332; CLR, 1157.
¹³³ Staatslehre, 336; CLR, 1161. ¹³⁴ Staatslehre, 336; CLR, 1161.
individual are alive only in the relationship of tension in which positive law and
the legal conscience find themselves’.¹³⁵
Heller’s state theory is considered to be both highly abstract and vague in its
formulation.¹³⁶ While this is true, Heller does manage to identify more precisely
than any other legal scholar a juristic logic that makes sense of the constitution
of the state. In an incisive account, Dyzenhaus explains that Heller’s argument
involves ‘elaboration of an ethical foundation to law which has content, though
one which is not prescribed by any particular philosophy or ideology’.¹³⁷ This
content is that which maintains the public sphere as autonomous. Its juristic
character belongs to the special type of law we have identified as droit politique.
When scholars such as Dyzenhaus suggest that Heller’s notion of an ‘ethical
right of resistance . . . which has weight but no legal recognition’ is ‘fraught with
ambiguity’,¹³⁸ this can be resolved by drawing a distinction between positive law
and droit politique. The concept of droit politique provides the key to understand-
ing the constitution of the state.
¹³⁵ Staatslehre, 336; CLR, 1161.

¹³⁶ See Wolfgang Schluchter, Entscheidung für den sozialen Rechtsstaat (Baden-Baden: Nomos
2nd edn, 1983), 182–216.
¹³⁷ David Dyzenhaus, ‘Hermann Heller and the Legitimacy of Legality’ (1996) 16 OJLS
641–666, 651.
¹³⁸ Ibid, 659.
9
State Formation
The juristic concept of the state provides a scheme of intelligibility, a way of mak-
ing sense of the public sphere. The scheme cannot remain within the realm of
ideas; it must acquire a material existence. This complicates any attempt to spe-
cify the general character of the state, not least because the processes of European
state formation exhibit a high degree of variation. Each arrangement has been
shaped by particular local circumstances, so that it cannot easily be said that the
state that emerges is the product of a specific design. Governing arrangements are
as various as the local conditions from which they sprang.
Each state emerges as a defined territory, with a subject people and a ruling
authority. But some states are formed as a consequence of the disintegration of
medieval empires, while others result from the integration of smaller units into a
larger arrangement. The events triggering these arrangements are similarly multi-
farious: ‘conquest, rebellion, secession, the murders of heirs, multiple treaties,
purchases, surrenders of rights to commercial exploitation, acts of parliament, the
intermarriage of ruling families, hereditary succession to estates hitherto uncon-
nected, the extinction of palatine independencies, the consolidation of expired
fiefs, and the falling in of feudal inheritances’.¹
Given the disparate circumstances of their creation, it is not surprising to dis-
cover great variation in the nature of their constitutions, or that some states were
able to establish more robust structures than others. The character of a state ‘is
not a model from which copies may be struck off ’: it can only be ‘what the effort
to understand this experience has made of it’.²
Given these histories, it might be doubted whether any general scheme of
European state formation can be discerned. If that is so, the inquiry into the
foundations of public law must remain particular. One way round this impasse
is to adopt the distinction, examined in Chapter 8, between the constitution of
the state and the constitution of its government. It may be argued that, although
the constitutional contracts authorizing a particular governmental form exhibit
¹ Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human
Conduct (Oxford: Clarendon Press, 1975), 185–326, 185–186.
² Ibid, 198.
significant variation in modern European history, it is possible to identify a com-

mon logic in the constitution of the state.³
This approach bears comparison with recent work by historians, political sci-
entists, and historical sociologists who have sought to identify the critical factors
that determine levels of stability and power in the European system of states. This
work has generated an extensive literature which not only advances understand-
ing of the processes of European state-building but also identifies the critical fac-
tors that explain variation in governing regimes. But the aim of this chapter is
more limited. It first outlines the main features of this work on European state
building and, having set that context, it then offers an explanation of the develop-
ment of the particular form of the English/British state. The general objective is
to provide an alternative account of constitutional development to that provided
by the grand English tradition of constitutional history.
This revised account shows how, notwithstanding the contemporary peculi-
arities of the British constitution, the English system of government has gener-
ally operated within the European mainstream. Divergence is a relatively recent
phenomenon, a consequence of the modern practice of constitution-making
(the subject of the chapter that follows). One general objective, then, is to show
that, even though the English case provides a specific illustration of develop-
ment of the European state form, the complexities of the emerging parliamentary
state indicate how difficult it is to produce any singular account of European
constitutionalism.
I. European State-building Practices
Recent scholarship on European state-building practices has focused on three

critical questions. First, how was it possible to build robust systems of govern-
ment that have imposed a uniformity of order on diverse and disparate territories
and have maintained their authority in the face of the threat of religious upheaval
and later of challenges posed by industrialization, urbanization, and commer-
cialization? Secondly, why, despite the similarity of the challenges with which
rulers were presented and the relatively homogeneous cultural context in which
they operated, were the governing structures that emerged so varied? Thirdly, is it
possible to derive from the body of work undertaken with respect to the first two
questions—concerning the impact of forces of uniformity and variety—some
general explanatory laws of the European state-building process?
³ Cf Peter J Steinberger, The Idea of the State (Cambridge: Cambridge University Press, 2004),
31–32: ‘the state is to government and policy as musical harmony is to melody. Any particular har-
monic structure can sustain an immense variation of melodic choices; but such choices must be
consonant with or otherwise “justified” in terms of their harmonic setting’.
240 State Formation
These investigations have generated a rich literature on state-building proc-
esses. If a single general conclusion is to be drawn from these studies, it is that
warfare has been the single most determinative factor in the development of the
European state form. From the eleventh century onward, Europe, divided into
a multiplicity of governing forms, was locked in a series of conflicts that have
persisted down to the present day. Over the last millennium, Europe has been in
a state of perpetual war, especially if one accepts Hobbes’ observation that ‘the
nature of War, consisteth not in actuall fighting; but in the known disposition
thereto, during all the time there is no assurance to the contrary’.⁴ This has not
only been Europe’s natural condition: it is also the force that drives its political
development.⁵ For the purpose of responding to war or the threat thereof, rulers
have had to centralize and monopolize the exercise of political power, and it is
from these necessities that the modern state has been forged. In Tilly’s aphor-
istic formulation: ‘War made the state, and the state made war’.⁶ The objective
of enhancing military power has been the decisive factor not only driving gov-
ernment growth but also in modernizing its structures, deepening its regulatory
control over social life, and expanding its capacities.
That general proposition may be uncontentious, but a finer-grained analysis
is required if an account of the nature of the European state form is to be given.
Even if geo-military struggle is the decisive factor in state formation, why has the
path of development within European nations been so varied? Here, the works
of Hintze and Weber have been particularly influential. Acknowledging the crit-
ical importance of warfare in shaping the modern state,⁷ Hintze warned against
adopting a singular explanation.⁸ His studies of patterns of governmental for-
mation suggest that two main types can be identified: the English and the con-
tinental. The main difference between these contrasting formations is that on
the continent ‘military absolutism with a bureaucratic administration emerges’,
while in England an older, more evolutionary process occurs and this leads to
⁴ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 88–89.
⁵ Brian Downing, The Military Revolution and Political Change: Origins of Democracy and
Autocracy in Early Modern Europe (Princeton, NJ: Princeton University Press, 1992); Downing,
‘Constitutionalism, Warfare, and Political Change in Early Modern Europe’ (1988) 17 Theory &
Society 7–56.
⁶ Charles Tilly, ‘Reflections on the History of European State-Making’ in Tilly (ed), The
Formation of Nation States in Western Europe (Princeton, NJ: Princeton University Press, 1975),
3–83, 42. See also Tilly, ‘War Making and State Making as Organized Crime’ in Peter B Evans,
Dietrich Rueschemeyer, and Theda Skocpol (eds), Bringing the State Back In (Cambridge:
Cambridge University Press, 1985), 169–191, 170.
⁷ See Otto Hintze, ‘Wesen und Wandlung des modernen Staats’ [1931] in Hintze, Staat und
Verfassung: Gesammelte Abhandlungen zur Allgemeinen Verfassungsgeschichte Gerhard Oestreich
(ed) (Göttingen: Vandenhoeck & Ruprecht, 3rd edn, 1970), 470–496, 480: ‘Der Krieg ist das große
Schwungrad für den gesamten politischen Betrieb des modernen Staates geworden’ (‘War became the
great flywheel for the entire political undertaking of the modern state’).
⁸ Otto Hintze, ‘Military Organization and the Organization of the State’ [1906] in Felix Gilbert
(ed), The Historical Essays of Otto Hintze (New York: Oxford University Press, 1975), 175–215.
‘parliamentarism and self-government’. The main reason for this differentiation,
Hintze argued, was geographical: the greater the threat of land war, the greater
the likelihood of parliamentary institutions being marginalized and an absolutist
state being formed.⁹
Weber refined Hintze’s accounts with the claim that the modern state was born
of a struggle between patrimonial rulers and governmental elites for control of
governmental processes. This struggle began with the emergence of governing as
a distinctive activity, the critical moment arising when governmental tasks could
no longer effectively be carried out by members of the king’s household. Effective
administration then required the involvement of those with the administrative
skills, financial means, and military resources needed to extend the authority of
the king’s rule. The key factor, Weber suggested, was ‘whether the holder of power
controls the administration personally and directly, having the actual administra-
tive work done by personal servants or by paid officials or by personal favourites
and confidants, none of whom are proprietors . . . of the material means of oper-
ation (Betriebsmittel) but who work, rather, under the direction of the ruler; or
whether the opposite is the case’.¹⁰ If the opposite does occur and the ‘dependent
administrative staff have complete or partial control, in their own right, over the
material means of administration’, then a feudal type of political association is
formed in which the king shares rule with the aristocracy.¹¹ If the ruler main-
tains personal control, patriarchal forms of rule are established through which
emerges ‘the bureaucratic state order’, the order which ‘in its most rational form,
is specifically characteristic of the modern state’.¹² Weber contended that ‘the
development of the modern state is set in motion everywhere by a decision of the
prince to dispossess the independent, “private” bearers of administrative power
who exist alongside him, that is all those in personal possession of the means of
administration and the conduct of war, the organisation of finance and politic-
ally deployable goods of all kinds’.¹³
The classic investigations of Hintze and Weber provide the general frame within
which most recent studies have operated.¹⁴ The most sophisticated analysis has
⁹ Otto Hintze, ‘Macht Politik und Regierungsverfassung’ [1913] in Hintze, Staat und
Verfassung, above n 7, 424–456, 427–428.
¹⁰ Max Weber, ‘The Profession and Vocation of Politics’ [1919] in his Political Writings Peter
Lassman and Ronald Spiers (eds) (Cambridge: Cambridge University Press, 1994), 309–369, 314.
See further, Max Weber, Economy and Society Günther Roth and Claus Wittich (eds) (Berkeley:
University of California Press, 1978), 1010–1064, 1085–1090.
¹¹ Weber, ‘Politics’, above n 10, 314–315.
¹² Ibid, 315.
¹³ Ibid.
¹⁴ See, eg, Gianfranco Poggi, The Development of the Modern State (Stanford: Stanford University
Press, 1978); Perry Anderson, Lineages of the Absolutist State (London: Verso, 1979); Tilly, above n
6; Michael Mann, The Sources of Social Power. Vol.1, A History of Power from the Beginning to ad
1760 (Cambridge: Cambridge University Press, 1986); Downing, above n 5; Wolfgang Reinhardt,
Geschichte der Staatsgewalt: Eine vergleichende Verfassungsgeschichte Europas von den Anfängen bis
zur Gegenwart (Munich: Beck, 1999).
242 State Formation
been that presented by Ertman. Ertman’s starting point is Hinzte’s division of

governing regimes into two types: absolutist rule associated with the emergence
of a state bureaucracy (eg, France and Germany) and constitutional systems asso-
ciated with parliamentarism and administration through ‘self-government’ of
local political elites (eg, Britain). Ertman suggests that Hintze’s scheme presents
a false dichotomy.¹⁵ The evidence shows that ‘proto-modern bureaucracies were
to be found not only in absolutist Germany and Denmark, but in constitutional
Sweden and Britain as well’ and that ‘the infrastructure of Latin Europe’s abso-
lutist states (France, Spain, Portugal, Savoy, Tuscany, Naples) were clearly pat-
rimonial in character’.¹⁶ The division is not as simple as Hintze suggests. In its
place, Ertman establishes a fourfold typology of European state structures: abso-
lutist bureaucratic (German territorial states, Denmark); absolutist patrimonial
(France, Portugal, Savoy, Tuscany, Naples); constitutional bureaucratic (Britain,
Sweden); and constitutional patrimonial (Poland, Hungary).
Ertman’s basic thesis is that most of the variation in the nature of governing sys-
tems across Europe by the late-eighteenth century can be accounted for by three
key factors: ‘the organization of local government during the first few centuries
after state formation; the timing of the onset of sustained geopolitical competi-
tion; and the independent influence of strong representative assemblies on admin-
istrative and financial institutions’.¹⁷ That is, where participatory local government
institutions developed early (as in England, Scotland, Hungary, Poland, and
Scandinavia), co-operation between local and central elites prohibited the growth
of absolutism and required the acceptance of a degree of power sharing. So the
existence of local institutions is a significant variable in the pattern of European
state formation. Secondly, the type of state created depended on the conditions and
timing of geomilitary competition: ‘Rulers who built up their apparatuses later [ie,
after 1450] were . . . better able to resist pressures for staff-dominated (patrimonial)
administrative and financial arrangements and instead construct proto-modern
bureaucracies over which they themselves retained substantial control’.¹⁸ Finally,
the existence of representative assemblies that sought a share in law-making was
an important factor prohibiting the emergence of absolutism.
With respect to the English case, Ertman argues that office-holders occupied a
central place in government right from the outset, and that parliamentary resist-
ance to the extension of their powers came mainly in the seventeenth and eight-
eenth centuries. Because of this determined parliamentary resistance, the British
state in the eighteenth century could develop a proto-modern administrative
¹⁵ Thomas Ertman, ‘Explaining Variation in Early Modern State Structure: The Cases of
England and the German Territorial States’ in John Brewer and Eckhart Hellmuth (eds), Rethinking
Leviathan: The British and German States of the Eighteenth Century (Oxford: Oxford University
Press, 1999), 23–52.
¹⁶ Thomas Ertman, Birth of the Leviathan: Building States and Regimes in Medieval and Early
Modern Europe (Cambridge: Cambridge University Press, 1997), 9.
¹⁷ Ibid, 6.
¹⁸ Ibid, 319.
system which enabled it to emerge as the main example of what he calls the model
of bureaucratic constitutionalism. In this chapter, I want to revise understanding
of British constitutional history in the light of this type of state-building theory,
not least because Britain’s path of constitutional development has created an unu-
sual arrangement—one that now seems aberrant.
This history focuses on the central role of Parliament as the pivot of the British
system of government. The continuous presence at the heart of government of a
representative body at one remove from the executive government has provided a
means by which the English people could forge a political unity and express their
national identity. In this guise, Parliament has come to symbolize the idea of
the ‘political nation’ and this has become critical for understanding the peculiar
character of the British state.
The distinctiveness of its parliamentary system has enabled Britain to pursue a
relatively unusual path of modernization, often held up as a model of the successful
adaptation of governing institutions to the pressures of economic, social, and techno-
logical change. But this claim is rarely made today. In the early-twentieth century,
the centrality of Parliament was generally acknowledged, and the parliamentary
model was even suggested as being the greatest gift of the English people to the state-
building process.¹⁹ This perspective has now been almost entirely eclipsed.²⁰
The tasks that Parliament has undertaken over time have varied considerably.
At times an opposition to the overweening power of government, Parliament has
also been used as a powerful instrument of government. Presenting itself as a legis-
lature, Parliament has, at critical moments, carried out important tasks as a court
and as a council. Portrayed as a beacon of liberal democracy, Parliament has been
used as the tool of both monarchy and oligarchy. Examining Parliament’s multi-
farious roles in the evolution of the English/British state offers an alternative way
of viewing the nature of the British constitution—one in which Parliament is
treated not primarily as a symbol of liberty but also as a means of state power.
This perspective thus treats the British case not as a singular instance, but as a dis-
tinct model of European state-building practice.
II. The Formation of the English Parliament
The story of the formation of English Parliament begins at the Conquest. The
essential point is that this was a conquest—an invasion by the Normans that
¹⁹ See AF Pollard, The Evolution of Parliament (London: Longmans, 1920), 3: ‘Civilized man
has drawn his religious inspirations from the East, his alphabet from Egypt, his algebra from the
Moors, his art and literature mainly from Greece, and his laws from Rome. But his political organ-
ization he owes mostly to English conceptions, and constitutional systems all over the world are
studded with words and phrases which can only be explained by reference to the medieval English
parliament’.
²⁰ For an exception, see David Judge, The Parliamentary State (London: Sage, 1993).
244 State Formation
resulted in an economic and administrative revolution.²¹ After the Conquest,

William declared the entire land of England, by then recognized as one indivis-
ible regnum, to be royal property, terrae regis. Retaining almost 20 per cent him-
self, the king rewarded his chief vassals with estates amounting to around 40 per
cent of the land.²² These estates were allocated feudally in return for homage and
knight service, but being the product not of royal weakness but of its strength,
the type of feudalism that developed in England was unusual. William’s overrid-
ing political objective was to ensure that despite becoming major landlords, the
chief barons could not assume the main tasks of government. He achieved this
by geographically dispersing the estates of the chief vassals. With the exception
of the palatine earls of Chester and Durham, who were charged with defence
against the Welsh and Scots, none of the seigniorial jurisdictions extended over
an entire shire.²³
Another method, alongside the policy of dispersal,²⁴ was to use the shires as
the principal instruments of royal government. Because a Roman state had never
been fully developed in Britain, the shires had been continuously retained as the
main units of territorially integrated local government.²⁵ William determined
to bolster these units by appointing the sheriff (shire reeve) as the Crown’s repre-
sentative for each county. The sheriff, who was in no sense subordinate to the earl
or local magnates, thus became the chief officer of the Crown in the localities.²⁶
Later, in order to monitor the work of the sheriff and to oversee justice in the
shire courts, Henry I, borrowing from the Carolingian institution of the missi,
²¹ See John Le Patourel, The Norman Empire (Oxford: Clarendon Press, 1976), 319: ‘after Duke
William’s Conquest of the kingdom, [England] became an overwhelmingly aristocratic and eccle-
siastical colonization. From England, colonization spread to Scotland and conquest and colon-
ization into Wales . . . At the same time as it was thus extended, this aristocratic domination was
organized into a political structure’.
²² SE Finer, The History of Government from the Earliest Times (Oxford: Oxford University Press,
1997), 900 (another 25 per cent were controlled by the Church, with the remainder being held by
petty freemen).
²³ Émile Boutmy, The English Constitution Isabel M Eaden (trans) (London: Macmillan, 1891),
6: ‘He to whom fell the largest share had 793 manors scattered over twenty counties. Forty other
Barons, the heads of their class, held manors in six, twelve, and even twenty-one counties’.
²⁴ WL Warren, The Governance of Norman and Angevin England 1086–1272 (London: Edward
Arnold, 1987), 56: ‘There can be little doubt that dispersal was deliberate policy’.
²⁵ James Campbell, ‘The Significance of the Anglo-Norman State in the Administrative History
of Western Europe’ in his Essays in Anglo-Saxon History (London: Hambledon Press, 1986), ch 11:
‘The shires (counties) of Northumberland, Cumberland, Westmoreland, Durham, Lancashire and
Rutland were created after 1066. Otherwise a map showing the English shires as they were until
1974 represents to an astonishing degree the administrative geography of the early eleventh cen-
tury’ (at 171, n 1).
²⁶ The ordinance of William I which differentiates the spiritual from the temporal courts
deploys the expression, fortitudo et justitia regis vel vicecomitis (‘the power and jurisdiction of the
king and the sheriffs’) and thus provides clear evidence that no intermediary existed between
the king and his local representative: see William Stubbs, Select Charters and other illustrations
of English Constitutional History from the Earliest Times to the Reign of Edward I HWC Davis (ed)
(Oxford: Clarendon Press, 9th edn, 1913), 99–100.
established a system of ‘justices in eyre’.²⁷ These itinerant judges, travelling the
country on circuit, marked a considerable expansion of royal justice. They also
kept the work of the sheriff, and subsequently the justices of the peace, under
close review.²⁸
Norman statecraft was also strengthened by building on the traditional Anglo-
Saxon concept of kingship. An oath of fealty to the king had to be sworn not only
by the chief vassals but by all holders of land. This ensured that, over and above
the feudal relationship, a political bond of obedience between the subject and the
Crown was forged. These factors—a well-ordered regnum, a powerful monarch,
and a relatively weak baronage—created the conditions under which a unified
and highly centralized polity could evolve. By the start of the thirteenth century
unity of national law had been achieved, thereby preventing the growth of polit-
ical feudalism.
In these ways, the threat posed by a powerful monarchy counteracted the
centrifugal tendencies of feudalism. The danger remained that this centralized
power would be abused, and when this happened its after-effects were momen-
tous. The Angevin kings of England did indeed ‘exploit their realm in an attempt
to expand and defend the continental empire of which England became a part’,
but this policy led directly to Magna Carta in 1215.²⁹ In the circumstances of
twelfth and thirteenth century Europe, there was nothing unique about that
charter. That the king was obliged to end a period of disastrous wars by granting a
charter of liberties to his subjects reflected ‘the natural reaction of feudal societies
to monarchical importunity’ of the period.³⁰ The idea that somehow ‘the people’
sided with the barons to preserve their ancient liberties is simply an invention of
Whig historians.³¹ But there was one significant difference about Magna Carta
which has ensured its status, in Stubbs’s words, as ‘the first great public act of the
nation’.³² The fact is that, while the demand for liberties on the continent led to
municipal independence, the objective of the English barons was to acquire some
share in an already well-established system of government.
The charter, in Finer’s summation, ‘limits the Crown as dominus but upholds
it as rex’ and its thrust ‘was to accept the strengthened Crown and its expanded
²⁷ See Paul Brand, ‘The Formation of the English Legal System, 1150–1400’ in Antonio Padoa-
Schioppa, Legislation and Justice (Oxford: Clarendon Press, 1997), ch 6.
²⁸ Warren, above n 23, 110–112; C Warren Hollister and John Baldwin, ‘The rise of administra-
tive kingship: Henry I and Philip Augustus’ (1978) 83 American Historical Review 867–905.
²⁹ JC Holt, Magna Carta (Cambridge: Cambridge University Press, 2nd edn, 1992), 24.
³⁰ Holt, ibid, 27. Holt offers other examples and notes (at 26) that Magna Carta ‘did not spring
from any insular genius, not was it more searching or more radical than its continental parallels’.
³¹ See Edward Jenks, ‘The Myth of Magna Carta’ (1904–1905) 4 Independent Review
260–273, 261: ‘there is no shadow of justification for the conventional doctrine [espoused by
Stubbs] that . . . Magna Carta was . . . the work of the “nation” or the “people” in any reasonable
sense of the term’.
³² William Stubbs, The Constitutional History of England (Oxford: Clarendon Press, 6th edn,
1896–1897), i.569–572.
246 State Formation
jurisdiction, yet to try to eliminate the caprices of the individual monarch’.³³ The
king’s authority to govern was never questioned. What the charter required was
that this authority be exercised through his council. Stubbs both exaggerates and
misconstrues its significance in his claim that ‘the whole of the constitutional his-
tory of England is little more than a commentary on Magna Carta’.³⁴ But in the
recognition that acts of the king have an official character that must be exercised
through certain institutional forms, the charter marks a milestone in the emer-
gence of public law.
One important provision of the charter was the reiteration of the requirement
that no taxes can be levied ‘except by the common counsel of our realm’.³⁵ During
the reign of Henry III (1216–1272), the meeting of the king with the magnates in
council was accepted as the appropriate form through which the ‘community of
the realm’ expressed its will. But by the mid-thirteenth century the council was
starting to lose its exclusive authority to determine the common will, and Henry
asked each of the shires to send two knights to supplement numbers in occasional
discussions of new aids. This was the practice that set the framework for the for-
mation of Parliament.
The work of establishing the institution of Parliament was undertaken during
the century of the first three Edwards. Parliament thus came into existence as an
act of royal will and as an instrument of royal government, the driving force of
which was financial necessity generated by wars in France and Scotland.³⁶ It was
established mainly because it was felt convenient to amalgamate the ‘estates’, the
meeting with tenants-in-chief to discuss financial necessities, with ‘parlement’,
the hearing of petitions in cases referred by the judges. It is in this latter sense that
we trace Parliament’s origins back to a high court. But the principal predispos-
ing cause of this union was the ubiquitous presence of the council: ‘nothing was
called a parliament from which the council was absent; parliament is, in fact, a
parliament of the council, and a plenum or generale parliament was simply a gen-
eral and full (or public) session of the council’.³⁷
In its earlier stages, this Parliament often presented itself as a place of confron-
tation between the king and his subjects over grievances. Only under Edward III
(1327–1377) was a degree of royal direction of Parliament re-established, and
with this Parliament began the process of transformation from an event into an
institution. Only in 1377, at the end of Edward III’s long reign, had Parliament
acquired a degree of permanence. In Edward I’s reign, Parliament’s membership
³³ Finer, above n 22, 905, 904.

³⁴ Stubbs, above n 32, i.572.
³⁵ Magna Carta, c 12.
³⁶ GL Harriss, ‘War and the emergence of the English parliament, 1297–1360’ (1976) 2 Journal
of Medieval History 35–56; Michael Prestwich, The Three Edwards: War and State in England,
1272–1377 (London: Methuen, 1980), 2: ‘The central constitutional development [in this period]
was the evolution of parliament, and it was the pressures of war which gave the institution much of
its unique character’.
³⁷ Pollard, above n 19, 58.
was variable, summoned at the pleasure of the Crown, and existing as a unicam-
eral meeting. But by the end of Edward III’s reign ‘its membership was settled
and had divided into two houses, its business procedures were established, its acts
were officially recorded by its own clerk, and it had acquired some acknowledged
powers and privileges’. ³⁸
The institution derived its strengths from three basic features. First, Parliament
was formed from the union between a high court of justice with a body (the
estates) charged with taxing and representative responsibilities. Its technical
forms are purely legal in origin, and these have left their imprint on the institu-
tion today. It is only from a gradual recognition that individual petitions con-
tained common grievances that Parliament’s role altered from that of a court to
a political and legislative forum.³⁹ Secondly, Parliament was a forum in which
the council, as the co-ordinating agent of the king’s government, controlled the
agenda.⁴⁰ If Parliament had emerged as a body that simply opposed the Crown
and promoted the cause of liberty by curtailing the Crown’s prerogative, it would
surely have withered at an early date. Its survival depended on its utility as an
instrument of royal government. An additional source of its strength flowed from
the fact that the king’s council was embedded in his Parliament, indeed was its
animating element.
The third feature distinguishing the English Parliament is its mode of represen-
tation. Although the principle of representation, and its growth and extension in
the parliamentary system, is often believed to be the essence of the English trad-
ition of democracy, it is all too easy to attach anachronistic modern ideas to the
practices of medieval representation.⁴¹ Crucially, the Commons was not sum-
moned to attend Parliament to take an active part in affairs of state, but only to
consent to decisions. Their presence was required ‘not to tie the hands of the coun-
cil, but to unloose the pockets of their constituents’.⁴² Writs sent to prelates, earls,
barons, and councillors were conveyed individually, and although attendance was
obligatory they were often detained on other matters. But ‘the writ to the sheriff
summoning two representatives from each of the thirty-seven shires allowed no
such backsliding; he was firmly ordered to make them come and took pledges
to ensure that they did’.⁴³ Further, although the formula of plena potestas—that
³⁸ GL Harriss, ‘The Formation of Parliament, 1272–1377’ in RG Davies and JH Denton

(eds), The English Parliament in the Middle Ages (Manchester: Manchester University Press, 1981),
29–60, 60.
³⁹ Doris Rayner, ‘The Forms and Machinery of the “Commune Petition” in the Fourteenth
Century’ (1941) 56 English Historical Review 198–233 (Pt I), 549–570 (Pt II). Parliament, never-
theless, did not entirely lose its private, judicial business and this survives today in the form of the
private bill procedure.
⁴⁰ See JF Baldwin, ‘The King’s Council’ in James Field Willard et al (eds), The English Government
at Work, 1327–1336 (Cambridge, MA: Harvard University Press, 1940), vol 1, 129–161.
⁴¹ See GO Sayles, The King’s Parliament of England (London: Edward Arnold, 1975), ch 1.
⁴² Pollard, above n 19, 59.
⁴³ Harriss, above n 38, 38.
248 State Formation
which empowered representatives to bind their constituents⁴⁴—may later

have come to signify some notion of popular sovereignty,⁴⁵ it was experienced
in the thirteenth century essentially as a device of effective government.⁴⁶
Representation was an incident of feudal service, not an expression of democratic
principle.
But what exactly was being represented? This is where we discern something of
the exceptional character of the English Parliament. The answer to the question
requires closer consideration of the nature of estates and of the role of the shires.
The popular notion that the medieval world revolved around a system of three
estates⁴⁷ expressed in the constitution of Parliament is, in the English context,
erroneous. In particular, the well-marked distinction on the continent between
the nobility, who held their estate by military service, and an inferior estate, in
free socage, is not so clearly differentiated in the structure of English government.
After the Conquest, the baronage formed two strata, the barones majores and a
group of minor vassals, tenentes in capite. These differences of degree assumed
a greater significance when the great vassals, together with bishops and judges,
formed the council, while the minor vassals were summoned as a group through
the sheriff. Consequently, when Parliament separated into houses, the lesser bar-
ons and knights took their places with the representatives of the towns. As Boutmy
explains, this group brought to the Commons ‘the loftiness, the boldness and the
tenacity of an ancient military class’ and supplied ‘a natural channel of commu-
nication’ with the higher baronage.⁴⁸ Furthermore, since many of the privileges
of the great vassals were linked to their functions as councillors and since a seat
at the council table could not be divided, nobility became tied to peerage and
operated strictly in accordance with primogeniture. Formed from the outset as a
body of political magnates, the idea of the English baronage is one which diluted
considerably the power of a nobility by birth. Barons and knights—Lords and
Commons—remained for the most part the elder and the younger offspring of
the same family. And it is the existence of the larger group of lesser nobles along-
side the city and borough members in the Commons that, during the Middle
Ages, gave that house its singular strength.
⁴⁴ JG Edwards, ‘The Plena Potestas of English Parliamentary Representation’ in Oxford Essays in

Medieval History presented to H.E. Salter (Oxford: Clarendon Press, 1934), 141–154.
⁴⁵ Gaines Post, ‘Plena Potestas and Consent in Medieval Assemblies’ in his Studies in Medieval
Legal Thought: Public Law and the State, 1100–1322 (Princeton, NJ: Princeton University Press,
1964), ch 3.
⁴⁶ See HM Cam, ‘The Theory and Practice of Representation in Medieval England’ in Edmund
B Fryde and Edward Miller (eds), Historical Studies of the English Parliament, vol.1: Origins to 1399
(Cambridge: Cambridge University Press, 1970) ch 9, 272: ‘The burgesses summoned to the coun-
cil of 1268 had to bring with them letters from their community declaring that they would hold as
accepted and established whatever these men should do on their behalf ’.
⁴⁷ FW Maitland, The Constitutional History of England (Cambridge: Cambridge University
Press, 1908), 75: ‘The three estates are clergy, barons and commons, those who pray, those who
fight, those who work’.
⁴⁸ Boutmy, above n 23, 35–36.
This strength is reflected in the role of the shires. It is the county court, the offi-
cial body through which the work of the shire was undertaken, which provides
the foundation of the House of Commons. Cam has argued that ‘the preserva-
tion and utilization of local institutions and local sentiment by the monarchy’
was made possible only because of the effective centralization of power under the
Normans and Angevins, and this in turn made possible ‘the growth of the con-
ception of the community of the realm’.⁴⁹ Critical to this process is the fact that
the knights, who failed to obtain baronial exemption from attendance at the shire
courts, ‘recouped themselves by managing the business of their humbler neigh-
bours in the shires’.⁵⁰ The knights therefore gained the leadership of the localities
from the peers, who, owing to their position on the council, obtained privileged
exemption from attendance at the county court. ‘From such a beginning’, con-
cludes Cam, ‘there could develop what, by Tudor times, was a commonplace—
the conception that all England was represented in the house of commons’.⁵¹
Such a powerful, all-encompassing notion of representation could be expressed,
however, only because it was accepted that ‘a man was there not only for his local-
ity but for something much more; he was “a publick, a Councellor to the whole
State” ’.⁵²
This sense of a national consciousness, rooted in the localities but flowering
at the centre, was the efficient secret of the English parliamentary system. The
system of estates on which the parliaments of continental Europe were invari-
ably founded expressed a form of class representation, with each estate possessing
its own will and often able to block national development.⁵³ The great service
which the English Parliament rendered in the Middle Ages, Pollard concludes,
‘was not . . . to make England a constitutional state, but to foster its growth
into a national state based on something broader and deeper than monarchical
centralization’.⁵⁴ This sense of national unity, further, was civic rather than eth-
nic in character.⁵⁵ And it was forged at the centre by Parliament, whose func-
tion was ‘to evoke a common political consciousness at Westminster and then to
propagate it to the constituencies’.⁵⁶
⁴⁹ Cam, above n 46, 277.

⁵⁰ Pollard, above n 19, 111.
⁵¹ Cam, above n 46, 278.
⁵² Ibid.
⁵³ Pollard, above n 19, 77: ‘It was by no accident that the first step in the first French Revolution
was the fusion of the three estates into one National Assembly. The difference between English
and French development was that in France the fusion was instantaneous and therefore caused an
explosion, while in England it was a gradual transformation spread over centuries’.
⁵⁴ Ibid, 133.
⁵⁵ Stubbs, above n 32, vol 1, 572, notes that as early as Magna Carta the ethnic aspect of nation-
alism had been suppressed: ‘There is not a word in it [the charter] that recalls the distinctions of
race and blood, or that maintains the differences of English and Norman law’.
⁵⁶ Pollard, above n 19, 133.
250 State Formation
III. Parliament and the Formation of the Modern State
The English nation acquired its political consciousness and means of taking
national action through the medium of Parliament. Parliament thus performed
a vital if ambiguous role in the formation of the modern state. The link which
Parliament forges between the people (Staatsvolk) and the ruling authority
(Staatsgewalt) defines the regime as one of parliamentary government. But that
phrase tells us little about the modes through which the activity of governing
is undertaken. It should not be supposed that parliamentary government incor-
porates modern liberal ideas concerning the allocation of governmental powers,
any more than it implies democratic accountability of government to the people.
Parliament’s role in the formation of the modern state becomes clearer if we begin
by assuming that judicial, executive, and legislative tasks are combined in the
framework of a parliamentary state.
During the Middle Ages, the strength of parliamentary institutions resided
in the fact that the king’s court, council, and Parliament formed an elaborate
system of multi-layered government. In its origins, Parliament was a high court
of justice;⁵⁷ without the existence of these judicial functions, it might never have
evolved into a legislature. Further, the King-in-Council has always been embed-
ded within the framework of the King-in-Parliament. The roles and composition
of the various institutions of court, government, and legislature may vary. When
parliamentary members sit in judgment they act as peers.⁵⁸ When they advise the
Crown on matters of administration they perform duties as councillors. When
they carry out law-making functions they assume responsibilities as Members of
Parliament. But it is the presence of the Crown which is the common and defin-
ing element. Only the Crown or its representative possesses authority to hold a
court. Only when the king’s councillors are present in Parliament can it function
properly.⁵⁹ And every act of Parliament technically remains an act of the King-
in-Parliament.⁶⁰
⁵⁷ Pollard, ibid, 24: ‘A judge is still addressed as “my lord” because the high court of justice in
which he sits is, in spite of its removal from Westminster Palace to the Strand, an historical part
of the high court of parliament, of which the judges were lords’. See further Charles H McIlwain,
The High Court of Parliament and its Supremacy: An Historical Essay on the Boundaries between
Legislation and Adjudication in England (New Haven, CT: Yale University Press, 1910), ch 3.
⁵⁸ Magna Carta, c 39: ‘No free man shall be taken or imprisoned or disseised or outlawed or
exiled or in any way ruined . . . except by the lawful judgement of his peers or by the law of the land’.
Chapter 39, which formulated a generally recognized axiom of the time (see Holt, above n 29,
75–77), laid down a method of judicial procedure and invoked peerage as a legal concept.
⁵⁹ Pollard, above n 19, 32: ‘It is because the king’s council is embedded in his parliament that
the king’s throne is in the house of lords, that the chancellor is present ex officio, that judges, law
officers of the crown, and secretaries of state sit on the woolsacks as late as the sixteenth century,
and that the act of 1539 prescribes places for the council in the house of lords, whether they are
peers or not’.
⁶⁰ Pollard, ibid, 22: ‘it is not long since the sovereign was personally considered so essential to
parliament that a demise of the crown instantaneously put an end to a parliament and rendered its
further proceedings an empty form. Earlier still, in the reign of Edward III, and again in that of
It was the intimacy of these connections that provided the medieval Parliament
with its peculiar strength and the energy which enabled it to survive and to flour-
ish. Once these bonds were loosened through a differentiation of responsibilities,
Parliament’s power diminished. This was most noticeable after the fifteenth cen-
tury when, as a result of its referral to the council, Parliament lost most of its
judicial work. Such differentiation meant that Parliament ceased to be as import-
ant for the conduct of government business, and this was reflected in a signifi-
cant decrease in the regularity of parliamentary sessions. From regular, annual
sessions at the opening of the fourteenth century,⁶¹ sessions of Parliament had
decreased by the fifteenth century to one meeting in every three or four years.
At this stage, it was only the need for supply that made Parliament essential
to the Crown. But the provision of supply remained of primary importance.
Prestwich has estimated that over the period of his 35-year reign, Edward I’s
military expenditure had been twice that of his ordinary (ie, feudal) revenues.⁶²
Edward had therefore been obliged to seek extra-ordinary aid, and this could be
achieved only with the consent of Parliament. The need for additional revenues to
pursue the ends of government provided Parliament and the magnates with influ-
ence and control. Notwithstanding the recurrent call of Parliamentarians that the
king must ‘live off his own’, it was the king’s need to convene Parliaments for the
purpose of acquiring revenues that ensured its survival and provided its power.
This role made Parliament dependent on the government’s need for revenue.
Consequently, it was the expansionary ambitions of the English crown in the late
medieval period that strengthened Parliament’s position. After England’s defeat
in France in 1485, however, the English state withdrew from European power
politics, engaging in relatively few wars in the sixteenth and seventeenth centur-
ies. Since the scale of extraordinary expenditures was therefore modest, there was
little need for the king to call regular Parliaments. During the first 20 years of
Henry VIII’s reign, for example, only four Parliaments were called. Parliament’s
power seemed to be on the wane.⁶³
In the early-sixteenth century, the powers and functions of the English
Parliament were in fact similar to many of their continental counterparts. But the
continental assemblies, which were geared towards opposition and the protection
of sectional privilege, were gradually abandoned and by-passed by monarchs.
The Parliaments of 1515 and 1523, notes Elton, ‘impressed both Cardinal Wolsey
Henry VI, it was a matter of anxious debate in parliament and in council whether parliament could
transact any business whatsoever without the corporal presence of the king’.
⁶¹ AL Brown, ‘Parliament, c.1377–1422’ in Davies and Denton (eds), above n 38, 109–140,
notes that during the Hundred Years War, there was almost one Parliament convened each year—
mainly to vote funds for war with France—and that Parliament assumed an importance almost
equal to that of the government.
⁶² Michael Prestwich, War, Politics and Finance under Edward I (London: Faber, 1972), ch 8.
⁶³ Conrad Russell, The Crisis of Parliaments: English History, 1509–1660 (Oxford: Oxford
252 State Formation
and King Henry VIII in much the same way’.⁶⁴ Yet, 100 years later the English
Parliament was the only strong representative assembly within the centralized
monarchies of early modern Europe. How is this to be explained?
The answer lies in the role Parliament performed during the revolutionary
changes of the Reformation. The significance of this role can be appreciated only
by returning to Parliament’s origins. Although Parliament’s role as a counter-
balance to government had been a prominent theme of the later Middle Ages,
this was not the reason why the institution had come into being. Its main
purpose had been to assist the king in governing the country. This is the role that
Henry reinforced during his struggle with the Church: ‘What made certain the
continued life of Parliament was neither custom nor mystique, but the problem of
Henry’s divorce and the break with Rome which grew from that’.⁶⁵
The Parliament summoned in 1529 was truly innovative: it sat regularly and
lasted for nearly seven years. This was the great Reformation Parliament which,
using the authority of the King-in-Parliament to the full, sought to eliminate medi-
eval liberties or privileges which were encumbrances on the exercise of sovereign
authority. And the most important of these privileges belonged to the Church.
Under the Reformation Parliament, the Church lost its jurisdictional independ-
ence: legislation was enacted which removed the papal jurisdiction in England
and unequivocally declared the king, not the pope, as supreme head of the Church
in England.⁶⁶ If, as has been claimed, the destruction of these medieval privi-
leges ‘was the great service rendered by the Tudors to the cause of English liberty’,
then it ‘was achieved, like most acts of liberation, by despotic means’.⁶⁷ In this
revolutionary act, Henry VIII made full use of the instrumentality of Parliament.
Crown and Parliament united to challenge any rival jurisdictions. While making
full use of his regal powers of kingship, Henry conceded that ‘we at no time stand
so highly in our estate royal as in the time of Parliament; wherein we as head and
you as members are conjoined and knit together into one body politic’.⁶⁸
The full constitutional significance of these events cannot be explained with-
out considering its specifically juristic aspects. The dispute between Henry and
the pope over the question of whether Henry’s marriage with Catherine should
be annulled was initially concerned solely with the interpretation of canon law.⁶⁹
⁶⁴ GR Elton, ‘ “The Body of the Whole Realm”: Parliament and Representation in Medieval and
Tudor England’ in his Studies in Tudor and Stuart Politics and Government (Cambridge: Cambridge
University Press, 1974), vol 2, ch 22, 52.
⁶⁵ Elton, ibid.
⁶⁶ G Nicholson, ‘The Act of Appeals and the English Reformation’ in C Cross, D Loades, and JJ
Scarisbrick (eds), Law and Government under the Tudors (Cambridge; Cambridge University Press,
1988), 19–30; Christopher Haigh, English Reformations: Religion, Politics, and Society under the
Tudors (Oxford: Clarendon Press, 1993), 114–115.
⁶⁷ Pollard, above n 19, 173.
⁶⁸ Ferrers’ case (1543); excerpted in GR Elton (ed), The Tudor Constitution: Documents and
Commentary (Cambridge: Cambridge University Press, 1960), 267–270, 270.
⁶⁹ This revolved round the question of whether the union between Catherine and Prince Arthur
had been consummated and therefore whether the biblical injunction prohibiting marriage with
a brother’s widow applied: see Leviticus, xx.21: ‘And if a man shall take his brother’s wife, it is an
Only after it became clear that the matter would not be resolved by these meth-
ods did the dispute move to a second stage: that of challenging the papacy’s claim
to authority in the Church. If the issue could not be resolved by canon law, then
the role of canon law within the framework of the law of nature and the law
of God must be questioned. The Act of Appeals of 1533, which terminated the
pope’s claim to act as the ultimate court in church affairs, is a product of the dis-
pute’s second stage. It is the result of an innovative theory concerning the status
of kings within the law of God. But the 1533 Act also illustrates the way in which
the dispute was transformed into a third and more decisive stage. Through the
Act’s Preamble, which stated that ‘this realm of England is an empire . . . governed
by one supreme head and king’, Henry in effect moved to claim a new juristic
foundation of governmental authority.⁷⁰
In the early-sixteenth century, it was generally accepted that legislation could
not interfere with spiritual matters because, in accordance with the law of God,
these were reserved to the Church.⁷¹ Henry’s theory of divine law—the second
stage of the dispute—similarly applied only to spiritual matters. But Henry
could not make new law except in conjunction with the Lords and Commons in
Parliament. In Elton’s words: ‘As supreme head (local pope) he was absolute and
could issue decrees for matters spiritual; as king he could exercise this fundamen-
tal function in the state only as one member of one (sovereign) mixed body’.⁷²
In order to convert royal supremacy into practical reality, parliamentary mech-
anisms had to be deployed. For the purpose of consolidating royal supremacy
it was necessary to exalt the position of the King-in-Parliament. Consequently,
although the Henrician legislation maintained the distinction between spiritual
and temporal matters, the public law of the realm became the effective con-
trolling force. When under Edward VI it was determined to take forward the
Reformation by instituting a uniform divine service, this was achieved through
Act of Parliament.⁷³ And when Mary as a Catholic queen sought to reverse the
Reformation by declaring invalid all laws contrary to the laws of God and the
canon law of the universal church, she found that this could only be achieved by
the enactment of parliamentary legislation.⁷⁴ By the time Elizabeth reintroduced
unclean thing: he hath uncovered his brother’s nakedness; they shall die childless’. Under pressure
from Spain, Clement VII was unwilling to rule on the question. But since Julius II had earlier
issued a bull of dispensation, Henry was also obliged to argue that the pope had no power to rule
contrary to the lex divina. Each of these claims, however, concerned interpretation of questions of
canon law.
⁷⁰ See further above, ch 1, 38.
⁷¹ In a case of 1506 (YB 21 H.VII, pl1), it was, for example, stated that Parliament cannot make
the king a priest because ‘no temporal act can . . . make a temporal man have spiritual jurisdiction’.
Cited in McIlwain, above n 57, 277.
⁷² GR Elton, ‘Lex terrae victrix: the triumph of parliamentary law in the sixteenth century’ in
his Studies in Tudor and Stuart Government and Politics (Cambridge: Cambridge University Press,
1992), vol 4, 37–57, 55.
⁷³ Acts of Uniformity 1549 and 1552 .
⁷⁴ Statute of Repeal 1553.
254 State Formation
the reformed church, it was beyond dispute that this could be achieved only by
Act of Parliament.⁷⁵ ‘Lex terrae won’, claimed Elton, ‘and the royal supreme head
saw himself compelled to rule his church by the same constitutional methods
that already applied to his rule of the commonwealth’.⁷⁶
If the formation of the modern English state is the product of the Reformation,
then it was also the moment of triumph of the King-in-Parliament. Only during
the Reformation do we see the clear recognition of Parliament’s omnicompetence.
Maitland commented that under their ‘practical despotism’, the Tudors ‘had laid
a terrible emphasis upon the enormous powers of parliament—there was nothing
that parliament could not do—it could dissolve the ancient dual constitution
of church and state, it could place the church under the king, it could alter the
religion of the land, it could settle the royal succession, it could delegate powers
to the king, it could take them away again’.⁷⁷ The institution of the King-in-
Parliament was freed from the shackles of medieval ideas of ‘fundamental law’
and from the division between a spiritual and temporal realm. The law enacted
by Parliament, the public law of the realm, was recognized as constituting the
highest authority.
We should note that although in the pursuit of his revolutionary object-
ives Henry had strengthened the powers of Parliament, this was because of
Parliament’s pliability and willing acquiescence in Henry’s scheme. The authority
that the King-in-Parliament acquired was thus as a legislative body. The establish-
ment of an absolute legislative power at the centre marked a critical stage in the
formation of the modern state. Of equal importance was the acknowledgement
that this was an institutional power: authority resided not in the personal power
of the king but in the institutional power of the King-in-Council in Parliament.
A further condition is necessary for the formation of the modern state: recog-
nition that executive government forms a public office.⁷⁸ The Henrician age also
saw great strides towards the realization of this condition. In the process of estab-
lishing the modern concept of legislative sovereignty, Henry’s reign also created a
‘revised machinery of government whose principle was bureaucratic organization
in place of the personal control of the king, and national management rather
than management of the king’s estate’.⁷⁹ Nevertheless, appointments to gov-
ernmental office during the sixteenth century were invariably obtained through
patronage.⁸⁰ Patrimonial government may be a precondition of impersonal pub-
lic administration, but it scarcely amounts to its realization.
⁷⁵ Act of Supremacy 1559; Act of Uniformity 1559.

⁷⁶ Elton, above n 72, 56.
⁷⁷ Maitland, above n 47, 298.
⁷⁸ See Conal Condren, Argument and Authority in Early Modern England: The Presupposition of
Oaths and Offices (Cambridge: Cambridge University Press, 2006).
⁷⁹ GR Elton, The Tudor Revolution in Government (Cambridge: Cambridge University Press,
1953), 4. Cf Christopher Coleman and David Starkey (eds), Revolution Reassessed: Revisions in the
History of Tudor Government and Administration (Oxford: Clarendon Press, 1986).
⁸⁰ Th is practice was reinforced by the tendency of clerics to be replaced by lay officials in
the royal administration: see JC Sainty, ‘A Reform in the Tenure of Offices during the Reign of
Henry VIII’s minister, Thomas Cromwell, created new boards staffed by
non-proprietary officials, but this had limited impact on patrimonial practice.⁸¹
Parliament also made fitful attempts to control such practices, but these measures
were ineffective.⁸² By the seventeenth century, patrimonial practices were grow-
ing and the apparatus of government was becoming dominated, as Aylmer put it,
by the 3Ps of patronage, patrimony, and purchase.⁸³ Parliament met only occa-
sionally, so it was difficult for the institution to scrutinize the efficiency or probity
of the administration.⁸⁴ The impact of the Reformation had been to establish the
authority of the King-in-Parliament, thus ensuring that, in Elton’s words, ‘the his-
tory of Parliament became primarily a history of bills and acts’.⁸⁵ But acceptance
by the royal administration of accountability to Parliament for the efficiency and
effectiveness of its conduct of government remained a remote prospect.
IV. The Struggle for Responsible Government
Chapter 61 of Magna Carta had introduced a revolutionary procedure for pre-

venting the king’s actions from endangering the peace and security of the realm.⁸⁶
But this method—the establishment of a council of barons that would provide a
procedure for redress of grievances against the king—was not to be the pathway
to responsible government. The means by which government was held to account
arose in a more circuitous fashion. It was achieved, paradoxically, through an
explication of the legal maxim that the king can do no wrong.
Although this principle was well established in English law by the fifteenth
century, its practical significance remained unclear. It meant, first and foremost,
that the king’s will was not personal: the king’s command must always be a matter
of record, documented in formal writs and solemn charters.⁸⁷ But since it also
meant that the king was immune from legal process, it followed that a subject
Charles II’ (1968) 41 Bulletin of the Institute of Historical Research 150–171. Ertman, above n 16,
179, notes: ‘The advent of lay officials normally brought with it a host of new practices—including
the attempts to convert “at pleasure” to life tenure, increases in fees charged to the public . . . —as
the new administrators sought to build a secure social and economic future for their families
around their offices, much as one would do around a landed estate. Moreover, once life tenure
had been secured, the office became proprietary and hence a marketable item for which payment
could be demanded at the time of one’s retirement’.
⁸¹ See Elton, above n 79, ch 2.
⁸² GE Aylmer, The King’s Servants (London: Routledge & Kegan Paul, 1974), 228; GR Elton,
The Parliament of England, 1559–1581 (Cambridge: Cambridge University Press, 1986), 125.
⁸³ Aylmer, ibid, 89.
⁸⁴ Ertman, above n 16, 182.
⁸⁵ Elton, above n 72, 57.
⁸⁶ See Holt, above n 29, 56–57, 78–80.
⁸⁷ As Dicey was later to express the point: ‘the Royal will can, speaking generally, be expressed
only in one of three different ways, viz. (1) by order in Council; (2) by order, commission, or war-
rant under the sign-manual; (3) by proclamations, writs, patents, letters and other documents
under the Great Seal’: AV Dicey, Introduction to the Study of the Law of the Constitution (London:
Macmillan, 8th edn, 1915), 322.
256 State Formation
could never obtain redress for any wrong committed by the king. The judiciary
responded to this situation by ruling that since the king could act only through
certain forms, his agents had to bear responsibility for the lawfulness of gov-
ernmental action. The king’s officers were obliged to act lawfully, which meant
that officials could not plead the king’s command as justification for an unlawful
act. Because of the king’s power to stop litigation relating to his officers, clear
precedents were lacking. But the principle was generally accepted. And although
medieval kings could block prosecution in the courts, they could not prevent the
impeachment of their ministers in Parliament. The parliamentary procedure of
impeachment thus became the main medieval instrument for ensuring that gov-
ernment business was lawfully conducted.⁸⁸
Impeachment nevertheless had an air of unreality, not least because it sug-
gested that the king had been reduced to a cipher in his own government. It is
therefore not surprising that it formed no part of the practices of Tudor gov-
ernment.⁸⁹ But circumstances were changing. One consequence of the ‘Tudor
revolution in government’ was that government was no longer treated as a private
matter of the king: it was becoming a matter of public administration. Further,
strengthened by its role in the Reformation, by the late-sixteenth century the
House of Commons was emerging as an independent body, protective of its privi-
leges.⁹⁰ When concerns were raised about the patrimonial practices of the early
Stuarts, their by-passing of the council in favour of informal advice of courtiers,
and the corruption of many of their officials, the stage was set for confrontation.
Under James I, this confrontation manifested itself in Parliament’s revival of
the dormant power of impeachment against the king’s ministers. The most sig-
nificant concerned the impeachment in 1621 of Sir Francis Bacon for accepting
gifts from chancery suitors. To forestall the action, James proposed that commis-
sioners be appointed by Parliament to examine the case and report to the king so
that he might pronounce judgment. The Commons rejected this, resolving that
servants of the Crown answer not to the king’s commissioners but to the high
court of Parliament.⁹¹ Parliament was asserting a basic claim that was later to
have a major impact on English public law: that no special administrative courts
should be established for the purpose of enforcing the law of the land.
⁸⁸ GT Lapsley, Crown, Community and Parliament in the Middle Ages: Studies in English
Constitutional History (Oxford: Blackwell, 1951), 269; MV Clarke, ‘The Origin of Impeachment’
in Oxford Essays in Medieval History presented to H.E. Salter, above n 44, 164–189.
⁸⁹ See Clayton Roberts, The Growth of Responsible Government in Stuart England (Cambridge:
⁹⁰ See JE Neale, Elizabeth I and Her Parliaments, 1581–1601 (London: Cape, 1957).
⁹¹ See Daniel R Coquillette, Francis Bacon (Edinburgh: Edinburgh University Press, 1992),
222–223: ‘Bacon was not impeached by Parliament because he took these “gifts”. He was impeached
because the Parliament of 1621 was seeking leverage on the King, and certain complaints against
Bacon conveniently came to hand. Bacon was a preferred target because he had been such an effect-
ive and loyal advocate of the King’.
The first major parliamentary challenge to James did not concern impeach-
ment, but the collection of impositions. The issue in Bate’s case (1606),⁹² in which
the defendant unsuccessfully appealed his conviction for refusing to pay a tax on
the importation of currants, was taken up by the Commons in 1610. Although the
king and Commons came close to reaching a negotiated settlement on the levying
of impositions without parliamentary consent, Parliament was dissolved before the
deal was concluded. It was largely as a result of this breakdown that in 1625 the
Commons took the unprecedented step of refusing to grant Charles I the traditional
customs dues for life, voting them for one year only. ‘The revival of impeachment in
1621’, Roberts notes, ‘challenged the King’s power to rule unlawfully; the revival of
the power of the purse in 1625 challenged his right to govern irresponsibly’.⁹³
During the early years of Charles’s reign, Parliament for the first time attacked
a minister, the Duke of Buckingham, whom it did not charge with acting unlaw-
fully. Its objection was to the methods through which government was being
conducted, and especially the by-passing of the council. But from 1629, Charles
returned to the Tudor model of conciliar government. Consequently, when in
1640 the long Parliament impeached Strafford and Laud, the Commons was dir-
ectly objecting to royal policies rather than the forms through which government
was conducted. Despite Parliament’s claim that these ministers had subverted the
fundamental laws of the realm, the methods used by Charles’s ministers had clear
precedents in Tudor government. The root of the quarrel was political and reli-
gious, rather than constitutional.
The failure of Strafford’s impeachment demonstrated that it was too blunt an
instrument for ensuring governmental responsibility to Parliament: impeach-
ment had been devised to try a minister for criminal culpability, not to hold him
to account for the conduct of government policy. And once Strafford, for the first
time in constitutional history, pleaded collective responsibility of the council for
government decisions, the mechanism appeared both ineffective and inequita-
ble. Since Strafford’s acts could not be shown to be treasonous, the Commons
was forced to abandon the impeachment. But it then promoted a bill of attain-
der. With Parliament refusing to vote supplies until Charles signed the act of
attainder, the king, in an act of grand tragedy, was obliged to sacrifice his great-
est servant for loyally following his commands. Strafford’s execution symbolized
the gulf that had grown between the king’s personal and political capacities. By
appearing to deny the king any real responsibility in governing his realm, these
developments were leading to the establishment of a constitutional monarchy.
This was not an office Charles intended to occupy.
⁹² The case is reported in Lane’s Reports, 1657, 22–31, but contains only the speeches of two of
the four judges and lacks arguments of counsel. Although ‘uncritically accepted as authoritative’ by
textbook writers, it was not manifestly novel, was not evidently wrong in law and ‘the only printed
report . . . was issued in curious and not very creditable circumstances fifty years after the event’:
GDG Hall, ‘Impositions and the Courts, 1554–1606’ (1953) 69 LQR 200–218, 218.
⁹³ Roberts, above n 89, 49.
258 State Formation
In the first of the Nineteen Propositions of June 1641, the Commons demanded
that the king act on the advice of a council of its choosing, refusing to settle a rev-
enue until the propositions had been accepted.⁹⁴ Charles merely maintained that
he would refuse to employ as an official anyone found guilty on an impeachment,
making impeachment an instrument by which the king now protected his own
position. By August 1642, the country had drifted into civil war. Eventually, in
January 1649, after Parliament had rejected Charles’s defence that in law the king
can do no wrong, the king was executed.⁹⁵
Under the Commonwealth, Parliament assumed a new role as both legisla-
ture and quasi-executive, with the work of overseeing state administration being
undertaken by parliamentary committees.⁹⁶ But by 1653 the inadequacy of
this experiment was widely recognized and, in response, the Protectorate was
established. The Instrument of Government which created the new governing
arrangements placed legislative power in Parliament and executive power in a
Lord Protector and Council. After Cromwell’s death, however, the legitimacy of
the entire arrangement was called into question and in 1660 the dominant fac-
tion in the army invited Charles II to return to the throne.
The constitutional position at the Restoration remained thoroughly ambigu-
ous. Too much had changed in the previous half-century to permit the Tudor
arrangements of conciliar government to be re-established. But dissatisfaction
with recent arrangements meant that Parliament no longer demanded nom-
ination of the king’s ministers. The only lasting legacy of the interregnum was
the determination never again to combine executive and legislative power in
Parliament. In this sense, it was the experience of the commonwealth that gave
birth to the principle of the separation of powers. Charles II acquired governing
power, with the right to appoint and dismiss his ministers at pleasure. Although
Parliament maintained the power to impeach ministers for acting unlawfully,
those ministers still owed their primary duty to the king. Behind the façade of a
restored monarchy, much remained unresolved.
During the reign of Charles II, some all-too-familiar scenarios were played
out, with the king seeking to rule through private advice rather than the formal
procedures of the Privy Council and the Commons reviving the use of impeach-
ment against the king’s ministers.⁹⁷ But many uncertainties remained, and when
⁹⁴ See Joyce Lee Malcolm (ed), The Struggle over Sovereignty: Seventeenth-Century English
Political Tracts (Indianapolis: Liberty Fund, 1999), vol 1, 145–179; Corinne C Weston and Janelle
R Greenberg, Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart
England (Cambridge: Cambridge University Press, 1981), ch 3.
⁹⁵ See Austin Woolrych, Britain in Revolution, 1625–1660 (Oxford: Oxford University Press,
2002), Pts II and III.
⁹⁶ See GE Aylmer, The State’s Servants: The Civil Service of the English Republic, 1649–1660
(London: Routledge & Kegan Paul, 1973), 9–17.
⁹⁷ The most important impeachment of the period was that of the Earl of Danby, the Lord
Treasurer. Danby recognized that government could never work through secret cabal and that the
only way forward was to ensure that the king’s ministers maintained the confidence of Parliament.
But his overriding objective was to restore prerogative government and to reduce governmental
James II succeeded to the throne in 1685, he determined to resolve the ambiguity.
His drastic solution was to institute a programme of Catholic modernization, mod-
elled on the French regime of Louis XIV. This attempt to create modern absolutist
government entailed radical centralization: ‘He reformed countless corporations,
he established nationwide ideological tests for political office, he transformed and
modernized the English bureaucracy both in the metropolis and in the counties, he
created a modern standing army and a more modern navy, and he did a great deal
to centralize and rationalize imperial governance’.⁹⁸ After James brought a collusive
legal action in which the judiciary affirmed his right to dispense with the Test Act,⁹⁹
granted liberty of public worship through royal dispensing power,¹⁰⁰ and then, by
proroguing Parliament in the autumn of 1685, ensured that Members of Parliament
would be unable to challenge his policies, the Whig magnates—fearing the subver-
sion of the constitution—sought help from the Dutch.
In November 1688, William of Orange—married to James’ Protestant daugh-
ter, Mary—landed in England at the head of an army. He pledged to uphold a
free Parliament, and was willing to negotiate terms that enabled James to main-
tain the throne with reduced powers, but in December James fled the country.
The ruling elite determined that James had forfeited his crown, held a convention
Parliament (without a king who should have summoned it), invited William and
Mary to reign jointly, and passed the Bill of Rights which abolished or curtailed
certain of the Crown’s prerogative powers.¹⁰¹
V. The Formation of the Parliamentary State
From a constitutional perspective, the revolutionary settlement of 1689 presents

itself as a conservative movement. Its basic objective was to restore the ‘ancient
constitution’: liberty was best preserved by ensuring that the executive respects
the ‘fundamental laws’ of the realm and that a balance between royal and parlia-
mentary power was maintained. Because of the events that immediately preceded
dependency on Parliament’s control of supply. Danby’s policy failed because of the king’s incon-
stancy and in 1678, when implicated in the king’s Francophile policies, he was impeached for high
treason. The issue was turned into a constitutional dispute when the king responded by pardoning
Danby, on the ground that he had done nothing except at the king’s command. Since treason could
only be committed against the king, it was argued that the king could exonerate the injury done
to him, but Parliamentarians argued that subversion of the laws of the realm touched the entire
body politic. The matter was resolved inconclusively since Charles was able to prorogue Parliament
before the trial, though Danby was to spend five years in the Tower. See Roberts, above n 89, ch 6.
⁹⁸ Steve Pincus, 1688: Th e First Modern Revolution (New Haven, CT: Yale University Press,
2009), 216.
⁹⁹ Godden v Hales (1686) 11 St Tr 1165.
¹⁰⁰ See Pincus, above n 98, 191–198.
¹⁰¹ The Declaration of Rights was read to William and Mary before they formally accepted
the Crown and later that year, after the convention had been retrospectively transformed into a
Parliament, was enacted as the Bill of Rights.
260 State Formation
it, the Declaration of Rights focused principally on royal rather than minister-
ial irresponsibility, so the main methods by which Parliament sought to con-
trol the king were through the traditional technique of maintaining control over
supply and impeachment of wayward ministers. Having learned the lessons of
1665, when James II on accession had been voted a generous financial settlement,
Parliament deliberately refused to vote William sufficient revenue, thereby ensur-
ing the Crown’s continuing dependency on Parliament. Nevertheless, although
conservative in form, in impact these changes were radical; this was, indeed, the
world’s first modern revolution.¹⁰²
The century following the 1689 Revolution marked the moment when mod-
ern constitutional practice was set in place. It also ‘saw an astonishing transform-
ation in British government, one which put muscle on the bones of the British
body politic, increasing its endurance, strength and reach’.¹⁰³ During this period
the country moved from being an agricultural to an industrial and commercial
nation, the English state was extended to form Great Britain,¹⁰⁴ a relatively weak
insular state was transformed into a major European power, and the foundations
were laid that enabled Britain rapidly to establish itself as the world’s domin-
ant trading economy and leading imperial power.¹⁰⁵ The link between modern
constitutional arrangements and the growth of economic, political, and imperial
power is not merely circumstantial.
The force of this revisionist interpretation is clearer when the focus is widened
to include international matters.¹⁰⁶ It then becomes evident that William did not
invade in order to protect the English constitution, but to bring England into
¹⁰² Pincus, above n 98, 485–486: ‘The Revolution of 1688–89 was the first modern revolution
because England was already quickly becoming a modern society before 1688. The crisis of the
middle of the seventeenth century had guaranteed not that England would diverge politically from
the Continental pattern but that no English government was likely ever again to rest on patrimo-
nial principles. Both the later Stuarts and their political enemies understood this. All understood
that for England to be a major player on the European scene, England needed to harness its com-
mercial energies to a bureaucratic state. . . . The revolutionaries of 1688–89 offered their version of
English modernity as a powerful alternative to that created by James II and his supporters. Both
groups wanted England to be a first-rate power both in Europe and throughout the world, both
groups wanted to modernize English religious practice, and both groups wanted England to be a
commercial society. They differed, and differed dramatically, in their proposed means to achieve
those ends. Modernization, in this as in all subsequent revolutions, was a cause, not a consequence,
of revolution’.
¹⁰³ John Brewer, The Sinews of Power: War, Money and the English State, 1688–1783 (New York:
Knopf, 1989), xvii.
¹⁰⁴ By the Treaty of Union 1707 between England and Scotland the kingdom of Great Britain
was established and then in 1800, by the Act of Union with Ireland, the United Kingdom of Great
Britain and Ireland was formed.
¹⁰⁵ See Geoff rey Holmes, The Making of a Great Power: Late Stuart and Early Georgian Britain,
1660–1722 (London: Longman, 1993).
¹⁰⁶ Dale Hoak and Mordechai Feingold (eds), The World of William and Mary: Anglo-Dutch
Perspectives on the Revolution of 1688–1689 (Stanford: Stanford University Press, 1996), 10: ‘the
true revolution of the seventeenth century occurred neither in the 1640s . . . nor in the 1650s . . . but
in the 1690s. Th is revolution marked the origins of the modern British state—the financial, mili-
tary, and bureaucratic product of England’s costly and incessant warfare against Louis XIV’.
a European-wide war against the French. This action led to what some histor-
ians call the ‘Second Hundred Year’s War’, which ended only with the defeat of
Napoleon. War, once again, was the harbinger of constitutional modernization.
The transformation that took place after 1689 resulted in the formation of what
Brewer calls the ‘fiscal-military state’,¹⁰⁷ Scott calls an Anglo-Dutch state,¹⁰⁸ and
what, from a constitutional perspective, can be called the ‘parliamentary state’.
The parliamentary state that emerged after 1689 had its origins in the preced-
ing period of intense struggle for responsible government, which had curtailed
some of the more corrupt governmental practices and left Parliament in a pivotal
position. Traditionally hostile to the Crown’s imperial designs and implacably
opposed to standing armies, Parliament now found itself in possession of the
instruments of control. But these powers were not deployed to scupper William’s
plans. During this period, Britain acquired a standing army as well as a powerful
navy, and the policies of the state became geared to the task of waging war. The
critical point is that ‘the price that MPs exacted for supporting the war was the
opportunity to subject its operations to unparalleled surveillance’.¹⁰⁹ By extend-
ing its powers of scrutiny, Parliament could ensure that governmental action was
geared to demonstrable public objectives. The establishment of these institutional
checks significantly enhanced the legitimacy of the Crown’s policies: restraints
on power served the function of generating power.
This point is most clearly seen through the increase in military power. Between
1680 and 1780 the British army and navy trebled in size; it was estimated that,
even by 1710, there were nearly 300,000 on the British military payroll.¹¹⁰ But
this military force could be exercised only in accordance with a system of parlia-
mentary oversight that ensured it could not be used as an instrument of monar-
chical absolutism.¹¹¹ Military power became a national rather than a monarchical
force. These military reforms were underpinned by a series of reforms that saw a
dramatic expansion in the administrative capacity of central government boards
and departments. These administrative reforms, already in place during the
Restoration,¹¹² promoted ‘an ethos of public duty and private probity’ accompa-
nied by ‘the emergence of professional administrators who devoted their lives to
¹⁰⁷ Brewer, above n 103.

¹⁰⁸ Jonathan Scott, England’s Troubles: Seventeenth-century English Political Instability in a
European Context (Cambridge: Cambridge University Press, 2000), esp ch 21. See also Jonathan
I Israel (ed), The Anglo-Dutch Moment: Essays on the Glorious Revolution and Its World Impact
(Cambridge: Cambridge University Press, 1991); Hoak and Feingold (eds), above n 106.
¹⁰⁹ Brewer, above n 103, 139.
¹¹⁰ Ibid, 30, 42.
¹¹¹ Ibid, 43–44: ‘Parliament established control of military funding and determined the size of
the army and the nature of its military law. A standing army could be raised in peacetime only with
parliamentary consent. . . . Foreign troops could also not be bought into England without the per-
mission of parliament. Thus, though “the Government, Command and Disposition of the Army”
was one of the prerogatives of the crown, it could only be exercised effectively with parliamentary
control’.
¹¹² Ertman, above n 16, 207.
262 State Formation
government service’.¹¹³ At their centre was a series of revolutionary changes in the

system of public finance that extended the tax base, created a new system of defi-
cit financing, and (modelled on the Dutch example of the Bank of Amsterdam)
established the Bank of England.¹¹⁴ These various military, administrative, and
financial reforms laid the foundations of a modern army, a professionally organ-
ized civil service, and a sophisticated system of public finance. They led to the
formation in Britain of a powerful ‘fiscal-military state’.
Although William believed that monarchical power was essential to the
effective conduct of war, he also recognized the necessity of a partnership with
Parliament if the military basis of English monarchy was to be recovered. What
Scott calls the ‘parliamentary monarchy’ thus became ‘the centrepiece of the
newly constructed English state’.¹¹⁵ And, as Brewer notes, Parliament acquiesced
because ‘at bottom, they [the Protestant aristocracy] recognized that the fiscal-
military state protected Englishmen’s liberties as much as it threatened them’.¹¹⁶
Parliament thus became the principal instrument of modern British state-build-
ing: ‘After 1688 the commons was not only the watchdog of government but part
of the government itself’.¹¹⁷ Or, as Scott put it, the seventeenth-century struggle
‘was against arbitrary government not absolutism; for participation in govern-
ment, not its abolition’ and after 1688 ‘parliament was to show that it had the
capacity to build the state’.¹¹⁸ The parliamentary state that was constructed, with
the tension between Parliament and government at its core, proved to be a much
stronger state than those built on monarchical absolutism.
VI. Representative and Responsible Government
Locke claimed that there were three main principles driving the 1689 Revolution:
that government involved an exercise in trust, that the legislature exercised the
supreme power, and that the executive had ‘a double trust put in him’ both to
maintain the basic compact between society and state and to respect the wishes
of the legislature.¹¹⁹ If the implicit assumption was that government was a trust
delegated by the people, then this was only an underlying theme. But during
the eighteenth century this assumption was gradually instilled as the working
principle of government. It is a principle most commonly expressed as that of
representative and responsible government.
¹¹³ Brewer, above n 103, 69, 79.

¹¹⁴ Scott, above n 108, 474–486; Brewer, above n 103, ch 4.
¹¹⁵ Scott, above n 108, 483.
¹¹⁶ Brewer, above n 103, 143.
¹¹⁷ Ibid, 159.
¹¹⁸ Ibid, 495.
¹¹⁹ John Locke, Two Treatises of Government [1680] Peter Laslett (ed) (Cambridge: Cambridge
University Press, 1988), vol 2, §222.
The implications of the revolutionary settlement for government-parliament
relations became evident in the Act of Settlement of 1701. Most familiar to con-
stitutional lawyers are sections 1 and 7 of the Act: section 1 settled the Crown
on the Protestant heirs of Princess Sophia, Electress of Hanover, and section 7
provided for security of tenure of the judiciary by making the judges irremov-
able except by a parliamentary address.¹²⁰ But the critical provisions with respect
to government-parliament relations were sections 4, 6, and 8. In a resolution of
the controversy over the Danby impeachment of 1678, section 8 stated that ‘no
pardon under the Great Seal of England be pleaded to an impeachment by the
Commons of England’; it thus provided statutory justification for the emerging
political necessity of the king to appoint ministers who could maintain the con-
fidence of Parliament. Section 8 was reinforced by section 6, which prohibited
placemen from sitting in the Commons. This provision was intended to prevent
the king from corrupting Parliament, but it also had the radical effect of barring
leaders of the Commons from serving the king in high office.¹²¹ The most revolu-
tionary provision was section 4, which stated:
All matters and things relating to the well governing of this kingdom, which are properly
cognizable in the Privy Council by the laws and customs of this realm, shall be transacted
there, and all resolutions taken thereupon shall be signed by such of the Privy Council as
shall advise and consent to the same.
Section 4 was designed not so much to resurrect the principle of conciliar govern-
ment as to establish a mechanism for ensuring that Parliament could ascertain
on what advice, provided by which ministers, the king was acting. It sought to
inscribe in law the principle of responsible government.
These were statutory solutions to seventeenth-century problems. But they had a
much broader impact. Since counsellors were to be held responsible to Parliament
for the advice on which the king acted, it meant that the king could not person-
ally exercise any governmental power: if the king were to act of his own volition
the spirit of section 4 would be infringed since the maxim that the king could do
no wrong ensured that Parliament would be deprived of any effective remedy.
The Act took the radical step of prescribing in law a constitutional framework
underpinned by the principle of the separation of legislative, executive, and judi-
cial power, and based on the requirement of a formal, official process for execu-
tive decision-making to ensure governmental accountability to Parliament.
¹²⁰ The latter provision removed a major parliamentary grievance of the seventeenth century, in
which the king had used the judiciary to reinforce his prerogative power. By making judicial inde-
pendence subject to a parliamentary address, it also strengthened Parliament’s position. See, eg,
Bate’s case, above n 92; more generally, see Adam Tomkins, Our Republican Constitution (Oxford:
Hart Publishing, 2005), 74–87.
¹²¹ This provision was later taken up by the American colonists and forms part of cl 6 of Art I of
the US Constitution: ‘no person holding office under the United States shall be a member of either
House during his continuance in office’.
264 State Formation
It was the radical character of the Act that led to its undoing. By prohibit-
ing placemen, section 6 ensured that the government would have to be formed
independently of the legislature, a change that transgressed one of the most basic
facets of the parliamentary system. By requiring formal recording of the basis
of executive decision-making, section 4 prohibited secrecy of counsel that had
been considered a necessary condition of effective government decision-making.
Both these provisions were repealed by the Regency Act of 1706. Although sec-
tion 4 went because it was felt to be impracticable, the provision about place-
men caused greater division: one side expressed concern about the ability of the
Crown to corrupt the house and the other argued that exclusion of placemen
was contrary to the traditions of English government. This was a turning point
in constitutional development. The repeal of these statutory controls was possi-
ble because Parliament had discovered a more informal means of ensuring min-
isterial responsibility. Rather than use the legal proceedings of impeachment,
Parliament established a position whereby a simple majority vote would be suf-
ficient to scupper a minister: the king’s ministers could remain in office only so
long as they maintained the confidence of Parliament.
During the eighteenth century, the king was effectively required to appoint
as ministers only those who could manage Parliament. This was a period of
aristocratic rule, in which the leading Whig families who had engineered the
Hanoverian succession maintained control over Parliament.¹²² The legal prin-
ciple that the king could do no wrong flourished only because he was obliged to
act on the advice of others. George I withdrew from the cabinet not, as legend has
it, because he could not speak English;¹²³ rather it was ‘embarrassment at pos-
sessing so little authority that drove him to absent himself from the Cabinet’.¹²⁴
The effect was to remove the tension between government and Parliament from
a pivotal position in the system; this was replaced with a new tension within
Parliament itself. This is the tension between the governing and opposition par-
ties: party must check party so that government might be kept within bounds.
During the eighteenth century we also see the formation of distinct political
parties. Whatever the controversies surrounding the emergence of parties as a
disciplined force in politics,¹²⁵ it seems clear that the party system ‘coincided
¹²² See John Cannon, Parliamentary Reform, 1640–1832 (Cambridge: Cambridge University
Press, 1973), esp ch 2 (showing the restricted nature of the franchise, the extent to which parlia-
mentary representation was under the control of a limited number of leading families, and how the
Commons itself could be seen to form an annex of the Lords).
¹²³ See, eg, Sir William R Anson, The Law and Custom of the Constitution (Oxford: Clarendon
Press, 4th rev edn, 1911), vol 1, 9: ‘George I did not care to preside at discussions conducted in
a language of which he was ignorant. Thenceforward it became the accepted rule that the King
should leave to his ministers the determination of the policy of the country’.
¹²⁴ Roberts, above n 89, 425.
¹²⁵ See JCD Clark, English Society, 1688–1832 (Cambridge: Cambridge University Press, 1985),
ch 1; Frank O’Gorman, Voters, Patrons and Parties: The Unreformed Electoral System of Hanoverian
England, 1734–1832 (Oxford: Clarendon Press, 1989).
with the emergence of a Parliament as a permanent institution’¹²⁶ and that polit-
ical parties came into existence not as an expression of democratic sentiment but
as vehicles for management of Parliament.¹²⁷ We thus see the emerging Whig
and Tory parties ‘locked in a formalized conflict with each other rather than, pri-
marily, with the crown’ and hence arguing ‘not about the nature of government
but about the nature of politics’.¹²⁸
It was in this political environment that the main practices of government—
what today are generally called constitutional conventions—were worked out.
They were established in a context in which two major parties vied for govern-
mental power. The resulting contest, determined by the ability of parties to main-
tain control of Parliament, reduced the king to the role of spectator. The constant
presence of an effective opposition, keen to exploit division in the governing
party and always prepared to assume the reins of power, had the effect of bolster-
ing the formation of compact and disciplined party structures.¹²⁹ In his analysis
of the development of party government up to 1832, Clark concludes that the
‘basic units of English politics have not (as is usually assumed) been ministries,
marked off from each other by general elections . . . [but] party systems, marked
off from their neighbours by high political crises’.¹³⁰ Many of the constitutional
conventions that govern parliamentary conduct and the relations between gov-
ernment and Parliament were forged as part of the evolving arrangements of
party systems.¹³¹ Consequently, the history of party systems provides the key to
understanding conventions and ‘offers a tenable rationale on which “constitu-
tional history” might now again be written’.¹³²
Only after the Reform Act of 1832 were parties able to complete their con-
quest of the Commons and ‘became accepted as the organizations whose relative
strength should determine the complexion of the government’.¹³³ But the critical
¹²⁶ BW Hill, The Growth of Political Parties, 1689–1742 (London: Allen & Unwin, 1976), 15.
¹²⁷ See Maurice Duverger, Political Parties: Their Organization and Activity in the Modern State
(London: Methuen, 2nd edn, 1959); Richard Rose, The Problem of Party Government (London:
Macmillan, 1974), 334–335.
¹²⁸ See JCD Clark, ‘A general theory of party, opposition and government, 1688–1832’ (1980)
23 Historical Journal 295–325, 298.
¹²⁹ Edmund Burke, ‘On the Present Discontents’ [1770] in BW Hill (ed), Edmund Burke on
Government, Politics and Society (London: Fontana, 1975), 74–119, esp 113–114.
¹³⁰ Clark, above n 128, 298. See also Rose, above n 127, 319: ‘In modern British history, the
realignment of policy groups within and across electoral lines has been as significant, if not more
significant, than changes in government caused by general elections. Since 1885, only the elec-
tions of 1906 and 1945 may be said to have directly precipitated major realignments in policy.
More often, major divisions have arisen from divisions within electoral parties. The Conservatives’
unwillingness to divide in public has not sustained continuous harmony in private. The Labour
Party is federal in policy as in structure; since its origins it has combined groups in basic disagree-
ment about policy. The Liberals have split, split, and split again since 1886’.
¹³¹ See, eg, Geoff rey Marshall, Constitutional Conventions: the rules and forms of political account-
ability (Oxford: Clarendon Press, 1984), 48–53.
¹³² Clark, above n 128, 325.
¹³³ DED Beales, The Political Parties of Nineteenth-Century Britain (London: Historical
Association, 1971), 11.
266 State Formation
point is that these arrangements of parliamentary government could never have

been worked out in a more democratic environment: the political division into
government and opposition was devised and implemented under conditions in
which Parliament was subject to the control of the landed class.¹³⁴ Only because
so many Members of Parliament were under an obligation to their noble patrons
could stable organizations be formed. Only when the two opposing coalitions
of the leading families of the nation were united in a common understanding of
the venture could such a division be sustained. Only in this atmosphere of ‘club
government’¹³⁵ could the peculiar notion of ‘His Majesty’s Opposition’, which
had already been recognized by the 1780s, be devised.¹³⁶ Under a more popular
form of government, ‘the multiplicity of opinions, the divergence of interests, the
shiftings of sentiment in the masses of the people would have reduced Parliament
to a state of disorganized confusion’.¹³⁷
The impact of the party system on the arrangements of government became
fully apparent during the 1830s, and it was ‘the identification of parties with both
government and opposition’ that was decisive.¹³⁸ Although marking an import-
ant shift, the impact of the Reform Act of 1832 should not be over-estimated.
The Act ‘did not institute a new political system because it was not intended
to: it did not hand over power to the middle classes because it was not intended
to’.¹³⁹ By extending the franchise to only 14 per cent of adult males, the newly
enfranchised urban middle class was obliged, given its numerical insufficiency,
to work within the existing party system. For much of the nineteenth century
the landed class continued in control and it was not until the last decades of the
nineteenth century that the industrial middle class assumed a majority in the
Commons. After the Reform Act 1867, which doubled the size of the electorate,
the party system was centralized, bureaucratized, and modernized as efforts were
made to attract the support of this new electorate. The party system became the
link between the electorate, Parliament, and the government, with parliamentary
elections becoming the method of choosing which party would rule.¹⁴⁰
The conventional practices which developed during the eighteenth and nine-
teenth centuries sat uneasily alongside the emerging party system. Dicey noted
that, in its strict sense, ministerial responsibility meant the legal responsibility of
¹³⁴ Boutmy, above n 23, 177: ‘Only a proud aristocracy, upheld but restrained by a sense of near
relationship to the Crown, could grapple successfully with the task’.
¹³⁵ Walter Bagehot, The English Constitution [1867] Miles Taylor (ed) (Oxford: Oxford
¹³⁶ AS Foord, His Majesty’s Opposition, 1714–1832 (Oxford: Clarendon Press, 1964), 411–415;
Bagehot, above n 135, 16.
¹³⁷ Boutmy, above n 23, 177.
¹³⁸ Clark, above n 128, 324.
¹³⁹ Cannon, above n 122, 257.
¹⁴⁰ GW Cox, The Efficient Secret: The Cabinet and the development of political parties in Victorian
England (Cambridge: Cambridge University Press, 1987); Ian McLean, Rational Choice and British
Politics: An Analysis of Rhetoric and Manipulation from Peel to Blair (Oxford: Oxford University
Press, 2001), ch 3.
every minister for every act of the crown in which he took part.¹⁴¹ But this legal
liability was overladen with a constitutional requirement that, individually and
collectively, ministers answered to Parliament for all governmental decisions.
The collective responsibility of government to Parliament was the product of
the cabinet system of government which emerged in the eighteenth century and
which, after the 1832 Act, ‘achieved a virtual monopoly of legislative initiative’,
leading to the ‘nearly complete fusion of the executive and legislative powers’.¹⁴²
In mid-century, Parliament retained control.¹⁴³ But by the turn of the century,
party discipline had ensured its overthrow: ‘The House of Commons no longer
controls the Executive; on the contrary, the Executive controls the House of
Commons’.¹⁴⁴
These trends have been bolstered by twentieth-century developments, such
as the removal of the House of Lords’ power of veto over legislation¹⁴⁵ and the
growing gulf between the ‘doctrinal simplicity’ of ministerial responsibility
and ‘administrative complexity’ in an era of big government.¹⁴⁶ But the central
importance of these conventions in the parliamentary system ensured that they
lived on, creating a secretive veil around an informal world of governmental
decision-making. Th is is the era of the emergence of governing networks with
a ‘corporate bias’ that not only diminishes party effectiveness but also reduces
the Cabinet itself to a marginal role in the allocation of limited resources rather
than as the ‘supreme directing authority’.¹⁴⁷ As Middlemas, writing in 1979,
put it:
Between 1911 and the present day, central government has undeniably moved from a posi-
tion of facilitating to one of supporting economic change, and finally to direction—but
only with the agreement of the governing institutions, whose formal representative struc-
tures have consistently relieved government of the impossible task of dealing with, and
harmonising the clash of wills of, large numbers of heterogeneous interest groups at all
levels of political life.¹⁴⁸
¹⁴¹ Dicey, above n 87, 322.

¹⁴² Cox, above n 140, 5; Bagehot, above n 135, 11. Note Balfour’s comment that ‘the gradual
growth and final establishment of the Cabinet system has been of greater importance than any-
thing in our constitutional history since the Revolution settlement’: Earl of Balfour, ‘Introduction’
to Bagehot, The English Constitution (London: Oxford University Press, 1936), xii.
¹⁴³ See AH Birch, Representative and Responsible Government: An Essay on the British Constitution
(London: George Allen & Unwin, 1964), 135: ‘Between 1832 and 1867 no fewer than ten govern-
ments were brought to an end by adverse votes in the Commons’.
¹⁴⁴ Sidney Low, The Governance of England (London: Fisher Unwin, 1904), 20.
¹⁴⁵ Parliament Acts 1911, 1949. And see further House of Lords Act 1999.
¹⁴⁶ Nevil Johnson, ‘Accountability, control and complexity: moving beyond ministerial respon-
sibility’ in Anthony Barker (ed), Quangos in Britain (London: Macmillan, 1982), 206–218, 216.
¹⁴⁷ W Ivor Jennings, Cabinet Government (Cambridge: Cambridge University Press, 3rd edn,
1969), 1.
¹⁴⁸ Keith Middlemas, Politics in Industrial Society: the Experience of the British System since 1911
(London: Deutsch, 1979), 379.
268 State Formation
This has come at the price ‘that the countervailing power of the public to con-
trol government [had] diminished grievously’.¹⁴⁹ If the power of cabinet govern-
ment has declined and the prime minister has become ‘the apex of a pyramid of
power’,¹⁵⁰ this is a power system that blurs public and private.¹⁵¹
VII. State, Law, and Constitution
The British parliamentary state is a complex entity, shaped by a long historical

process which reveals the singularity of its formation. The institution of
Parliament came into existence primarily as an instrument of royal government,
flourishing during the Middle Ages not because of its power to control the Crown
but because of its pliability in approving taxation needed to pursue royal policies.
Although Magna Carta curtailed the personal power of the king and provided
an institutional frame for royal will, this arrangement was expressed primarily
though the king’s council, not the Parliament. Parliamentary authority was aug-
mented for three main reasons: first, because it was an institution in which the
king’s councillors dominated the agenda (the Crown-in-Council-in-Parliament);
secondly, because Parliament combined judicial and representative functions;
and, thirdly, because the principle of the full representative authority of members
(plena potestas) ensured that the decisions of Members of Parliament would bind
their constituencies.
Formed as a tool of royal government, Parliament nevertheless became the
medium through which the idea of the political nation emerged. One reason
for this is because, having established a central authority so early, the Normans
allowed the institutions of government to flourish and, by continuing to work
with local communities, enabled the idea of ‘the community of the realm’ to
emerge. Further, because of primogeniture, the younger sons of the nobil-
ity assumed the responsibilities of leadership in both the shire courts and the
House of Commons, and the common familial connections between Lords
and Commons gave Parliament a particular strength. This strength came about
because the king’s court, council and Parliament—performing judicial, legisla-
tive, and governmental functions—were unified through this singular structure.
Consequently, when a national political identity was forged it was founded on
something deeper than monarchical authority.
Parliament’s status in the late-Middle Ages was dependent on the particular
role it performed within a unitary structure of central authority. This position was
¹⁴⁹ Ibid, 377. See further Josef Schumpeter, Capitalism, Socialism and Democracy (London:
Allen & Unwin, 3rd edn, 1950).
¹⁵⁰ RHS Crossman, ‘Introduction’ to Walter Bagehot, The English Constitution (Glasgow:
Collins, 1963), 51.
¹⁵¹ For the most recent appraisal, see Christopher Foster, British Government in Crisis (Oxford:
Hart Publishing, 2005). Th is theme is taken up in ch 15 below.
threatened by a growing differentiation of functions: once Parliament was seen
as a representative body that controlled supply, its status was dependent on the
ambition of the Crown’s policies. During the sixteenth century, it was becoming
marginalized and threatened to follow most European representative assemblies
of the period. Its position was restored only because of the Reformation. Henry
VIII needed to make use of parliamentary mechanisms to establish the principle
of crown supremacy. Henry exalted the King-in-Parliament as the supreme law-
making authority, but this liberation from the shackles of medieval ‘fundamental
law’ was achieved, once again, only because Parliament was so pliant.
Much of the history to this point is riddled with paradox: Parliament acquires
a significant role only because it is acquiescent, its general representative author-
ity is fostered mainly to enable it to bind its constituencies, its strength comes not
from differentiation but from fusion of power, and so on. A similar set of para-
doxes arise in its later formation: it performs a critical role in the development
of responsible government essentially because of the absolutist legal maxim that
‘the king can do no wrong’; when it acquires a pivotal position in government
after the 1689 revolutionary settlement, it uses its authority not to limit but to
construct a powerful British state; and once the principle of representative gov-
ernment is established, Parliament acquires, as its primary role, that of sustaining
the government in office.
The emerging modern parliamentary state provides us with distinctive con-
cepts of constitution and law, which depend upon a particular understanding of
sovereign authority. The Crown may be the pivot around which sovereign author-
ity revolves, but the monarch was never possessed of sovereign authority; this is a
modern idea resulting from the concept of the Crown-in-Parliament. Sovereignty
emerges from a process by which the powers of the Crown-in-Council were both
restricted and extended through the growing legislative authority of the Crown-
in-Council-in-Parliament. The establishment of this unlimited and undivided
authority of the Crown-in-Parliament marks the emancipation of parliamentary
law from the controls of medieval privileges and limitations, many of which were
expressed in the language of ‘fundamental law’.¹⁵² The modern concept of liberty
is not the product of constraints imposed on sovereign power; political liberty is
the product of the parliamentary formation of sovereign authority and thus is a
consequence of the sovereign power of parliamentary law.
The legal doctrine of parliamentary sovereignty, a distinctive feature of British
constitutional practice, is a result of the energy of the Crown acting through
Parliament and is bolstered by a growing acknowledgement of the authority
of the Crown-in-Parliament. In the sixteenth century, the English Parliament
was unique in Europe in being a regular institution with defined powers and
¹⁵² Pollard, above n 19, 220: ‘The prince was above the laws he made, but subject to those of
God and nature. It was from these immutable laws that medieval liberties were derived: they were
absolute rights, not the concessions of human authority. Kings and parliaments had not given
them, kings and parliaments could not take them away’.
270 State Formation
responsibilities. It was, in Elton’s words, ‘superior to similar institutions else-

where because it had no rivals in regional assemblies, because it genuinely pro-
vided an opportunity for all political interests to argue and resolve their conflicts,
because it was quite exceptionally organized for business, and because (all these
facts combining) it not only participated in government but was positively use-
ful to the monarchy’.¹⁵³ Once these arrangements were in place and the nation’s
political autonomy could be expressed through the legislative action of the King-
in-Parliament, the legal doctrine emerges. The doctrine is not that of parliamen-
tary sovereignty in any strict sense, but of state sovereignty as revealed through
the authority structure of the Crown-in-Council-in-Parliament.
This sovereign power is consolidated and extended as a result of the achieve-
ment of responsible government and of the growth of representative government.
No longer a lord operating in his court, the king became one member of a com-
posite body which had to be managed politically. Since the seventeenth century,
the effective working of government depended on ministers of the Crown who
were capable of managing Parliament. Often the cause of suspicion and fear in
the past, after 1689 governmental power grew extensively—not least because now
it was exercised by ministers who needed to retain the confidence of Parliament.
During the eighteenth century, the Crown-in-Parliament was recognized as
wielding an authority that both legally and constitutionally was absolute.¹⁵⁴ This
doctrine has been accepted by jurists¹⁵⁵ and judges¹⁵⁶ ever since.
¹⁵³ Elton, above n 64, 50.

¹⁵⁴ William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765),
156: ‘It hath sovereign and uncontrolable authority in making, confirming, enlarging, restrain-
ing, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible
denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the
place where that absolute despotic power, which must in all governments reside somewhere, is
entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and
remedies, that transcend the ordinary course of the laws, are within the reach of this extraordin-
ary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of
Henry VIII and William III. It can alter the established religion of the land; as was done in a var-
iety of instances, in the reigns of king Henry VIII and his three children. It can change and create
afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act
of union, and the several statutes for triennial and septennial elections. It can, in short, do every-
thing that is not naturally impossible; and therefore some have not scrupled to call it’s [sic] power,
by a figure rather too bold, the omnipotence of parliament’.
¹⁵⁵ See, eg, Jean Louis De Lolme, The Constitution of England, or, An Account of the English
Government [1771] (Indianapolis: Liberty Fund, 2008), 130: ‘it is a fundamental principle with
the English lawyers, that Parliament can do every thing, except making a Woman a Man, or a Man
a Woman’; Dicey, above n 87, 37–38: ‘The principle of Parliamentary sovereignty means neither
more nor less than this, namely, that Parliament thus defined has, under the English constitution,
the right to make or unmake any law whatever; and, further, that no person or body is recognised
by the law of England as having a right to override or set aside the legislation of Parliament’.
¹⁵⁶ See, eg, Lee v Bude & Torrington Junction Rly Co (1871) LR 6 CP 577, 582 (per Willes J):
‘We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done
by parliament with the consent of the Queen, lords, and commons? I deny that any such author-
ity exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct
it by repealing it: but so long as it exists as law, the Courts are bound to obey it’; Cheney v Conn
[1968] 1 All ER 779, 782 (per Ungoed-Thomas J): ‘What the statute itself enacts cannot be unlaw-
The significance of this doctrine has been obscured by the rise of English
analytical jurisprudence. For many constitutional lawyers, parliamentary sover-
eignty is simply the ‘ultimate political fact’.¹⁵⁷ But the question of how, when,
and why this basic fact might alter remains beyond juristic concern. For those
who do explore, the answers often are less than convincing. Since the doctrine
was not established by statute, lawyers looking for its source have concluded that
it ‘must evidently be part of the common law, for the English legal system knows
no sources of law other than those two’.¹⁵⁸ This leads to the conclusion that the
common law is ‘the ultimate constitutional foundation’¹⁵⁹ and that the doctrine
of sovereignty ‘is itself a creature of the common law and whose detailed contents
and limits are therefore matters of judicial law-making’.¹⁶⁰ From this position,
it is just a short step to claim that ‘the rule of law rests on twin foundations: the
sovereignty of the Queen in Parliament in making the law and the sovereignty of
the Queen’s courts in interpreting and applying the law’.¹⁶¹
Parliamentary sovereignty was established only once it was recognized that
the limitations of the powers of the Crown-in-Council could be overcome by
the Crown-in-Council working through Parliament. And the relative powers of
those partners in authority could only be worked out through a political pro-
cess. This was accomplished by an implicit acknowledgement of political change;
the Crown lost its power of veto over legislation, for example, not by legislation
but through the waning of its political authority. Other changes required more
explicit use of force, as occurred in the Civil War and in the revolution of 1689.
Occasionally, as can be seen with the reform of the franchise in 1832 or the loss
of the veto by the Lords in 1911, the threat of the deployment of more coercive
political power is required. Other political factors might account for the growing
self-confidence of the judiciary to assert its share of the exercise of the sovereign
authority of the state.¹⁶² But the fundamental point is that this is not an exercise
ful, because what the statute says and provides is itself the law, and the highest form of law that is
known to this country. It is the law which prevails over every other form of law’; Madzimbamuto v
Lardner-Burke [1969] 1 AC 645, 723 (per Lord Reid): ‘It is often said that it would be unconstitu-
tional for the United Kingdom Parliament to do certain things, meaning that the moral, political
and other reasons against doing them are so strong that most people would regard it as highly
improper if Parliament did these things. But that does not mean that it is beyond the power of
Parliament to do such things. If Parliament chose to do any of them the courts would not hold the
Act of Parliament invalid’.
¹⁵⁷ HWR Wade, ‘The basis of legal sovereignty’ (1955) CLJ 172–197, 188–189.
¹⁵⁸ CR Munro, Studies in Constitutional Law (London: Butterworths, 2nd edn, 1999), 161.
¹⁵⁹ Sir Owen Dixon, ‘The common law as an ultimate constitutional foundation’ (1957) 31
Australian Law Journal 240–154.
¹⁶⁰ TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism
(Oxford: Clarendon Press, 1993), 10.
¹⁶¹ X v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 48 (per Lord Bridge). See also
Stephen Sedley, ‘The Sound of Silence: Constitutional Law without a Constitution’ (1994) 110
LQR 270–291, 289–291.
¹⁶² See, eg, R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2
WLR 464, 487 (Lord Mustill, dissenting).
272 State Formation
in logic, or in the recovery of ‘true’ historical fact, or in the elaboration of funda-

mental principles of morality. Each of these factors may be invoked to strengthen
the claim, but the claim itself is rooted in an appreciation of the nature of the
contemporary political condition.
In the British system, the search for constitutional understanding requires not
an analysis of the rules establishing the office of government but an investigation
into the constitution of the state. The search for constitutional understanding
involves not only an analysis of the rules of positive law but an appreciation of the
requirements of droit politique. The former distinction is illustrated by Bagehot’s
differentiation between dignified and efficient versions of the constitution;¹⁶³ the
latter is captured by Maitland’s distinction between ‘jurist-law’ and ‘folk-law’, in
particular his claim that the intricacy of the connections between these two con-
cepts means that lawyers are unable to venture too far into what he called ‘legal
metaphysics’.¹⁶⁴ Neither of these distinctions are clearly understood, largely
because they rely on a relational logic in which each element of practice derives its
meaning and function only by appreciating the significance of an overall system
of ‘conductorless orchestration’.¹⁶⁵ The British system works through a series of
constitutional practices that maintain the institutions of government in a rela-
tionship of mutual tension.
¹⁶³ Bagehot above n 135, 7.

¹⁶⁴ FW Maitland, Township and Borough (Cambridge: Cambridge University Press, 1898), 14.
¹⁶⁵ Pierre Bourdieu, The Logic of Practice Richard Nice (trans) (Stanford: Stanford University
Press, 1990), 59.
PA RT I V
CONS T I T U T ION
10
The Constitutional Contract
The processes of state formation examined in Chapter 9 suggest that the modern
European state assumes no ideal form and has never reached any precise termi-
nus. State formation remains a ceaseless process, with no European territorial
settlement—let alone any particular arrangement of government—lasting very
long. The engagement has therefore remained ‘a permanent ingredient of modern
European government’.¹ One thing has changed, however, and this is the fact
that in the modern period the exercise of state-building has come to focus pri-
marily on the need to establish and maintain a stable constitutional form. This
constitutional focus is partly a response to the challenges presented by the growth
in the powers of government, together with a decline in authority of customary
ways of governing. These trends have brought about a shift in our understanding
of constitutions. Constitutions today are generally conceived as contracts drawn
up by ‘the people’ to establish and limit the powers of governing institutions.
This modern concept of the constitution marks a distinct break with the
ancient understanding. Drawing on the metaphor of the body politic, the ancient
idea of the constitution was bound up with the health and strength of the nation,
and the constitution evolved as the nation increased in vitality. This was the sense
of constitution Burke invoked when he suggested, in the context of French revolu-
tionary developments, that ‘the state ought not to be considered as nothing better
than a partnership agreement in a trade of pepper and coffee, calico, or tobacco,
or some other such low concern, to be taken up for a little temporary interest, and
to be dissolved by the fancy of the parties’.² A constitution, he explained, must be
looked on with reverence precisely because ‘it is not a partnership in things sub-
servient only to the gross animal existence of a temporary and perishable nature’;
it has evolved through the life of a nation and ‘becomes a partnership not only
between those who are living, but between those who are living, those who are
dead, and those who are to be born’.³ This ancient understanding has been over-
taken by the modern concept of the constitution as a contract.
¹ Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human
² Edmund Burke, Reflections on the Revolution in France [1790] Conor Cruise O’Brien (ed)
(London: Penguin, 1986), 194.
³ Ibid, 194–195.
276 The Constitutional Contract
The modern concept performs a critical function in public law: it provides the
foundation of legal order and lays down the basic law of law-making, establish-
ing itself as the pivot on which the legitimacy of legality turns. The foundational
claims made of modern constitutions are not without their ambiguities. The
exercise of constitution-making—the making of the contract—would appear,
for instance, to be a legal act. If so, then ‘the people’ that have authorized this
contract may not only be anterior to, but also superior to, the contract. But is ‘the
people’ not also a legal construct? The constitution that is regarded as the funda-
mental law with respect to positive law must itself, it seems, be the subject of more
basic legal considerations. These more basic considerations reveal the workings of
droit politique.
In this chapter, foundational questions relating to the status of modern consti-
tutions in jurisprudential thinking are considered and the nature and function of
the constitutional contract examined.
I. Modern Constitutions
The modern concept of constitution became fi xed in consciousness largely as a

consequence of the late-eighteenth century American and French Revolutions.
In his opening essay of the Federalist Papers, Alexander Hamilton claimed that ‘it
has been reserved to the people of this country . . . to decide an important ques-
tion, whether societies of men are really capable or not of establishing good gov-
ernment from reflection and choice, or whether they are forever destined to depend
for their political constitutions on accident and force’.⁴ A constitution, Hamilton
was arguing, is not simply, as Burke claimed, an ‘inheritance’: it is an instrument
through which the people are able, by deliberation and agreement, to establish
for themselves the framework of government under which they might live. The
impact of this modern notion was felt with pressing effect during the unfolding
of the French Revolution, which began in earnest when the Third Estate of the
Estates-General relegated to history the entire hierarchical ordering of the Ancien
Régime. It did so by declaring itself to be the constituent assembly of the entire
nation. Maintaining that ‘the assembled nation cannot take orders’,⁵ the con-
stituent assembly proceeded to draft the Declaration of the Rights of Man and
the Citizen as the preamble to a new type of constitution.
Since the late-eighteenth century, constitution-making has become one of
those profound acts in the political history of the nation, marking the attempt
to open a new chapter in that nation’s political development. These authority-
conferring instruments are treated as vital acts of renewal, commonly drafted in
⁴ James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 1 (87) (emphasis supplied).
⁵ François Furet, The French Revolution, 1770–1814 Antonia Nevill (trans) (Oxford: Blackwell,
1996), 64 (citing Sylvain Bailly).
I. Modern Constitutions 277
extreme circumstances when—whether through the break-up of empires, defeat

in war, or revolutionary overthrow of a regime—the governing order has all but
collapsed. As foundational acts of legal ordering they raise a series of questions.
Perhaps the most basic set of questions concerns the authority of the consti-
tutional text. Constitution-making is, as Walter Hamilton expressed it in 1913,
‘the name given to the trust which men repose in the power of words engrossed
on parchment to keep government in order’.⁶ But what causes us to believe in the
power-conferring character of those words? Burke’s point was that the constitu-
tion is a sacred thing worthy of reverence precisely because it is not, at least in any
simple sense, a man-made instrument.⁷ How can such respect and awe be felt for
a mere contract? Further, if written constitutions are attempts to bind future gen-
erations to a particular framework of government, must they not of necessity fall
short in the way that all planning documents—temporal and imperfect products
of time and place—are destined to fail? How, in particular, can the authority
of such constitutions be maintained under conditions of social, economic, and
political change? It was this type of concern that led Paine—otherwise a strong
promoter of modern constitutions—to argue that ‘every generation must be as
free to act for itself, in all cases, as the ages and generations which preceded it’. For
Paine, any entrenchment of constitutions amounted to the attempt to govern the
living by ‘the manuscript assumed authority of the dead’.⁸ To put the point even
more dramatically: how can constitutions, themselves the product of revolution-
ary action, suppress the possibility of further revolutionary action? And who is to
act as the authoritative guardians of these constitutional documents? Is it to be
the established institutions of government, a special institution such as a consti-
tutional court, or ‘the people’ themselves?
These are the main questions that must be addressed when inquiring into
the foundational character of modern constitutions. I propose to consider these
questions primarily with respect to the issues that have arisen in relation to the
world’s first modern constitution, that of the United States of America. The US
Constitution holds a remarkable status in the political life of the American nation.
Not only was the 1787 Constitution the world’s first modern constitution; it has also
become the most stable, permanent, and revered in history. Since their revolution
in 1789, the French have adopted at least 12 constitutions and have experienced
dictatorship, monarchy, and five republics. Over the same period, by contrast, the
US Constitution (discounting the Bill of Rights, adopted shortly after in 1791)
⁶ Walter H Hamilton, ‘Constitutionalism’ in Edwin RA Seligman (ed), Encyclopedia of the

Social Sciences (New York: Macmillan, 1931), vol 4, 225.
⁷ Maistre makes a similar point to Burke: ‘One of the greatest errors of this age is to believe that
the political constitution of nations is the work of man alone and that a constitution can be made
as a watchmaker makes a watch . . . Men never respect what they have made’. Joseph de Maistre,
‘Study on Sovereignty’ [1794–1795] in Jack Lively (ed), The Works of Joseph de Maistre (London:
Allen & Unwin, 1965), 93–129, 102–104.
⁸ Thomas Paine, ‘Rights of Man’ in his Rights of Man, Common Sense and other Political Writings
[1791] Mark Philp (ed) (Oxford: Oxford University Press, 1995), 83–331, 91, 92 (emphasis in
original).
has been subject to only 17 amendments in over 200 years, and is now generally
regarded as fi xed, permanent, and unamendable.⁹ Even the conflicts that led to
civil war in the 1860s were conceived not as fundamental conflicts over alterna-
tive ways of political being but as struggles over constitutional interpretation.¹⁰
The American experience of constitutionalism is unusual, not least in conveying
the impression that the constitution founds the state. But because of this it has
given rise to a huge and rich literature about modern constitutional ordering, and
this can usefully be drawn upon to help answer these foundational questions.
II. The Constitution as Contract
The idea of constitutional government long preceded the modern idea of the con-
stitution as a contract made by the people to establish the framework of govern-
ment. In 1738, for example, Bolingbroke gave expression to the English tradition
in his celebrated definition of the constitution as ‘that assemblage of laws, insti-
tutions and customs, derived from certain fi xed principles of reason, directed to
certain fi xed objects of public good, that compose the general system, according
to which the community hath agreed to be governed’.¹¹ Although incorporating
many of the central themes of modern constitutional understanding—including
fi xity, generality, rationality, and consent—Bolingbroke’s definition still belongs
to the older world in which constitutional arrangements evolved through a ser-
ies of practices consecrated by custom. It was left to Paine in 1791 to specify the
innovations brought about by late-eighteenth-century revolutionary upheavals.
Frustrated that controversies surrounding the significance of those events thrived
on ambiguity, he complained that ‘it will be first necessary to define what is
meant by a constitution’.¹² Paine then provided the first clear statement of the four
key features of modern constitutions.
First, a constitution ‘is not a thing in name only, but in fact’. It has not merely
‘an ideal, but a real existence’ and therefore, ‘whenever it cannot be produced
in a visible form, there is none’. A constitution is a thing and, specifically, it is a
document. Secondly, ‘it is a thing antecedent to a government, and a government
⁹ See Michael Kammen, A Machine That Would Go Of Itself: The Constitution in American
Culture (New York: Knopf, 1987), 11: ‘During the first century of national government, more
than 1,600 resolutions for amendments to the Constitution were introduced in Congress. By
1986 10,124 had been proposed, of which only 16 were actually adopted’. And at 394: ‘Of the 160
national constitutions existing in 1983, 101 had been established since 1970. In 1983 Salvador
adopted its thirty-sixth constitution since 1824. That may be excessive rather than the norm; but
neither has the American experience been typical’.
¹⁰ See Larry D Kramer, The People Themselves: Popular Constitutionalism and Judicial Review
(New York: Oxford University Press, 2004), 173–184.
¹¹ Viscount Bolingbroke, ‘A Dissertation upon Parties’ [1733–1734] in his Political Writings
David Armitage (ed) (Cambridge: Cambridge University Press, 1997), 1–191, 88.
¹² Paine, above n 8, 122 (emphasis in original). Paine continued: ‘It is not sufficient that we
adopt the word; we must fi x also a standard specification to it’.
is only the creature of a constitution’. A constitution ‘is not the act of its gov-
ernment, but of the people constituting a government’. Paine here invokes the
distinction between the constituted power (vested in the government) and the
constituent power (vested in the people), and fi xes the primacy of the people over
the office of the government. Thirdly, Paine highlights the comprehensive nature
of the constitution. It is ‘the body of elements . . . which contains the principles
on which the government shall be established, the manner in which it shall be
organized, the powers it shall have, the mode of elections, the duration of parlia-
ments, or by what other name such bodies may be called; the powers which the
executive part of the government shall have; and, in fine, everything that relates
to the compleat organization of a civil government, and the principles on which
it shall act, and by which it shall be bound’. Finally, Paine refers to its status
as fundamental law. A constitution ‘is to a government, what the laws made
afterwards by that government are to a court of judicature’. That is, the court
‘does not make the laws, neither can it alter them; it only acts in conformity to
the laws made: and the government is in like manner governed by the constitu-
tion’. Government neither makes nor can alter the constitutional laws which
bind it; these can be altered only through an exercise of the constituent power
of the people.¹³ These characteristics, highly controversial at the time,¹⁴ are now
widely accepted in modern understanding.¹⁵
Paine was writing towards the end of a period of intense revolutionary upheaval.
It is evident that, especially in the American context, the nature and status of
constitutions had become a central aspect of the colonists’ self-understanding of
their situation. Bolingbroke’s definition, reflecting the traditional understand-
ing, was still widely accepted by the colonists during this turbulent period and it
was not until the 1790s that the modern concept would be clearly articulated.¹⁶
This shift in the idea of the constitution, based in part on the notion that a con-
stitution could limit the power of law-making bodies, is itself an aspect of that
revolutionary movement.
Although the modern idea of the constitution is a product of this move-
ment, it had in critical aspects been shaped by earlier experience. The notion
of a written constitution, for example, was not entirely new for the American
¹³ Ibid, 122–123.
¹⁴ See, eg, Maistre, above n 7, 107: ‘In his evil book on the rights of man, Paine said that a
constitution is antecedent to government [etc] . . . It would be difficult to get more errors into fewer
lines’.
¹⁵ See eg, Dieter Grimm, ‘Verfassung—Verfassungsvertrag—Vertrag uber eine Verfassung’
in Olivier Beaud et al (eds), L’Europe en voie de constitution (Brussels: Bruylant, 2004), 279–287,
281–282 (identifying as the five key characteristics of modern constitutions: (1) a set of legal
norms, (2) establishing and regulating the exercise of public power, (3) founded on an agreement
of the people, (4) that forms a comprehensive framework , and (5) is erected on the principle of the
primacy of constitutional law).
¹⁶ See esp Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA:
Belknap Press, 1967), 175–198.
colonists.¹⁷ Early company charters granted by the crown were not in any strict
sense constitutional documents, but they did have the effect of establishing in
writing a framework of government for the colonies. Since these written char-
ters established a scheme of government beyond the power of either companies
or colonists to alter, it is not surprising to find that such charters came to assume
a greater status for the colonists than they did for the crown. One illustration
is the charter that Charles I granted in 1629 to the governor and company of
the Massachusetts Bay: initially presented as a form of company government, it
was soon converted into an instrument of colonial self-government. The char-
ter not only served as the colony’s constitution for the next 50 years but, in
revised form, it lasted until the Revolution itself. Further, when in the 1630s
a group of colonists moved from Massachusetts Bay to the Connecticut valley,
they drafted what they called ‘the Fundamental Orders of Connecticut’, an
ordinance that has been claimed as ‘the first American constitution accepted
by the people’.¹⁸ Such charters to trading companies and proprietors, together
with royal grants to establish colonies, had given the American colonists an
extensive experience with written charters of limited government operating
in conformity with ‘the Laws, Statutes, Government, and Policy of this our
Realm of England’.¹⁹
It seems highly improbable, as Wright notes, that ‘without this long experi-
ence with written instruments of government, the Americans would have turned
so naturally to the drafting of constitutions in 1776’.²⁰ In the latter half of that
year, written constitutions were adopted by six of the American states, leading to
the rapid acquisition of experience in the construction of modern constitutions.
These constitutions were drafted by conventions drawn from their legislatures
and none was put to the people for ratification. Nevertheless, it was still antici-
pated that they would take effect as fundamental law. The first—the Virginia
Constitution—contained no procedure for amendment, although others experi-
mented with the use of various types of amending clause. And while Virginia’s
Declaration of Rights was adopted earlier than, and separate from, its constitu-
tion, later constitutions—such as North Carolina’s—explicitly included a Bill
¹⁷ The world’s first written constitution is generally accepted as being the Instrument of
Government, drafted for the Commonwealth of England in 1653. However, this document had
been constructed within the frame of the ancient concept and, except for Cromwell himself, few at
that time had grasped the idea of a constitution that could be placed beyond the ordinary legislative
powers of the Parliament to alter.
¹⁸ See Charles Howard McIlwain, Constitutionalism and the Changing World (Cambridge:
¹⁹ Wright argues that this conformity clause, which was incorporated in some form or other
into all the charters, was ‘a most significant declaration of principle so far as the growth of the
practice of law-limited government in America is concerned’: Benjamin F Wright, Jr, ‘The Early
History of Written Constitutions in America’ in Carl Wittke (ed), Essays in History and Political
Theory in Honor of Charles Howard McIlwain (Cambridge, MA: Harvard University Press, 1936),
344–371, 348.
²⁰ Ibid, 360.
of Rights as an integral part. This initial experience was built upon after 1776:
‘between 1776 and 1783’, Wright concludes, ‘important advances had been made
in the techniques of preparing the fundamental law of the states, in the proc-
ess of adopting such constitutions, and in providing special processes for their
amendment’.²¹ The remarkable culmination of the federal constitution of 1787—
after the initial articles of confederation failed to provide a sufficiently powerful
central government—appears less extraordinary once previously acquired experi-
ence of drafting written constitutions is taken into consideration.
If the framing of the US Constitution was indeed ‘a novelty in the political
world’ and if the colonists are to be viewed as having ‘accomplished a revolu-
tion which has no parallel in the annals of human society’ on the ground that
they have ‘reared the fabrics of governments which have no model on the face
of the globe’,²² it should at least be acknowledged that their model had been
shaped in thought and action over the previous century or more. It might even
have been claimed that the initiator of this idea of constitution as contract was
none other than Hobbes. In his Leviathan of 1651, Hobbes had conceived of
governmental ordering not as flowing from custom or divine inspiration, but as
being the product of a scientific construction that possessed validity regardless
of time, place, or historical circumstance. His particular solution—the vesting
by the people of all power in the office of the sovereign, to enable him ‘to con-
form the wills of them all to peace at home and mutual aid against their enemies
abroad’²³—may not at first appear constitutionalist. A contract that alienates
the individual’s natural rights and vests absolute power of law-making in the
sovereign does not offer modern constitutionalists an adequate foundation for
modern government (though Hobbes does offer a rational explanation for this
remedy). But that is a secondary consideration. The radical implications for con-
stitutional thought that derive from his political philosophy are a consequence
of his general method.
This method is most clearly revealed in Chapter 29 of Leviathan, ‘Of those
things that weaken or tend to the dissolution of a commonwealth’. Hobbes
opens the chapter with the claim that: ‘Though nothing can be immortal
which mortals make; yet, if men had the use of reason they pretend to, their
Commonwealths might be secured, at least from perishing by internal diseases’.
Constitutional ordering, he suggests, must be the product of reason and con-
struction, and if a constitution fails because of internal disorders, this is a failure
of design. Since political power rests ultimately with the people, the challenge
must be to ‘conform themselves to one firm and lasting edifice’. For Hobbes, this
is an essentially technical problem, a problem of constitutional design. While it
will take the form of a contract amongst the people to establish a framework of
²¹ Ibid, 370. ²² The Federalist Papers, above n 4, No 14 (Madison), 144, 145.

²³ Thomas Hobbes, Leviathan [1651] Richard Tuck (ed) (Cambridge: Cambridge University
Press, 1996), 120–121.
government, such a permanent edifice cannot be realized without ‘the help of a
very able architect’.²⁴
The modern constitution is, in short, conceived by Hobbes to be a contract
entered into by the people to establish a comprehensive framework through
which the institutions of government are established and the exercise of their
powers regulated.
III. Revolution and Constitution
While the idea of the constitution as contract lies at the core of his scientific
method, Hobbes recognized that, if a lasting edifice were to be constructed,
the services of an able architect would be required. For Hobbes, this task was
of fundamental importance. Madison agreed. ‘If they [the drafters] erred most
in the structure of the [American] Union’, commented Madison of the post-in-
dependence confederation, it was because ‘this was the work most difficult to
be executed’.²⁵ While the people must legitimate the arrangement through the
process of adopting the constitution, the framers of the US Constitution are the
architects of the scheme.
Immediately there is a problem, inherent in the tension between the people
as authorizers and the framers as designers. Is there not a contradiction between
claiming that ‘the people are the only legitimate foundation of power’²⁶ and also
claiming that the terms of a particular scheme, incorporating institutional checks
on the expression of the will of the people, must be held sacrosanct? This tension
is only heightened with the passage of time: how can a constitution drafted in the
name of the people at a particular moment in time by a specific group of people be
deemed to have the authority to bind subsequent generations? More broadly: can
a constitution adopted by the revolutionary action of free and equal individuals
legitimately prohibit later revolutionary challenges from similarly free and equal
individuals? How is such an exercise in collective self-limitation to be explained
and justified?
To resolve these difficulties, we return to the convictions that drove the
American Revolution. The American theory of revolution is expressed in the
Declaration of Independence of 1776. Founded on principles implicit within
‘the laws of nature and of nature’s God’, the Declaration—in the name of the
people—proclaimed certain truths to be self-evident: ‘That all men are created
equal; that they are endowed by their Creator with certain unalienable rights;
that among these are life, liberty, and the pursuit of happiness; that, to secure
these rights, governments are instituted among men, deriving their just pow-
ers from the consent of the governed; that whenever any form of government
²⁴ Ibid, 221. ²⁵ The Federalist Papers, above n 4, No 14 (Madison), 145.

²⁶ Ibid, No 49 (Madison), 313.
becomes destructive of these ends, it is the right of the people to alter or to abolish
it, and to institute new government’.²⁷ Recognizing the potentially unruly nature
of these claims, the Declaration also asserted that prudence dictates that ‘govern-
ments long established should not be changed for light and transient causes’ and
that the right and duty to overthrow the government comes into play only when
‘a long train of abuses and usurpations . . . evinces a design to reduce them under
absolute despotism’.²⁸ The challenge the architects of the new Constitution faced
was that of establishing a framework of government which would ensure that
basic rights to life, liberty, and the pursuit of happiness would be guaranteed, so
that the legitimacy of government could never again be challenged.
The solution the framers devised, which constituted a revolutionary break with
the articles of confederation,²⁹ is not best characterized as a democracy. ‘An elec-
tive despotism’, Jefferson remarked, ‘was not the government we fought for’.³⁰
The ancient Greek democracies, the framers noted, exhibited characteristic vices
with the tendency to dissipate into intrigue and faction.³¹ What was needed was
a new type of republic that could preserve peace and stability and form ‘a barrier
against domestic faction and insurrection’.³² The solution they came up with was
touted as the means by which ‘the excellencies of republican government may be
retained and its imperfections lessened or avoided’.³³ The basic elements of this
scheme are listed by Hamilton: ‘the regular distribution of power into distinct
departments; the introduction of legislative balances and checks; the institution
of courts composed of judges holding their offices during good behaviour; the
representation of the people in the legislature by deputies of their own election’.³⁴
²⁷ Declaration of Independence, 4 July 1776 (Avalon Project of Yale Law School): <http://
avalon.law.yale.edu/18th_century/declare.asp>.
²⁸ Ibid. Cf John Locke, Two Treatises of Government [1680] Peter Laslett (ed) (Cambridge:
Cambridge University Press, 1998), vol 2, ch 19, ‘Of the dissolution of Government’.
²⁹ See Bruce Ackerman, We the People, vol. 1: Foundations (Cambridge, MA: Belknap Press,
1991), 41: ‘the Constitutional Convention was acting illegally in proposing its new document in
the name of We the People. The Founding Federalists, after all, were not prepared to follow the
ratification procedures set out in the Articles of Confederation that had been solemnly accepted
by all thirteen states only a few years before. The Articles required the unanimous consent of all
thirteen state legislatures before any new amendment could come into effect. In contrast, the
Federalists blandly excluded state legislatures from any role in ratification, and went on to assert
that the approval of special constitutional conventions meeting in only nine of the thirteen states
would suffice to validate the Convention’s efforts to speak for the People’. See further at 171–175.
³⁰ Thomas Jefferson, Notes on Virginia: cited in The Federalist Papers, above n 4, No 48
(Madison), 310.
³¹ The Federalist Papers, ibid, No 10 (Madison), 126: ‘it may be concluded that a pure democ-
racy, by which I mean a society consisting of a small number of citizens, who assemble and admin-
ister the government in person, can admit of no cure for the mischiefs of faction’.
³² The Federalist Papers, ibid, No 9 (Hamilton), 19.
³³ Ibid: ‘The science of politics . . . , like most other sciences, has received great improvement.
The efficacy of various principles is now well understood, which were either not known at all, or
imperfectly known to the ancients’.
³⁴ Ibid.
Although there was, as the last element indicates, a vital democratic component,
what was intended was the formation of a modern republic.
The modern republic is a type of government in which, although the author-
ity of government flows from the people,³⁵ the people are not permitted to rule
directly. Government is insulated from the people through the principle of
representation,³⁶ and governmental power is fully institutionalized. In framing
a government, argues Madison, ‘you must first enable the government to control
the governed; and in the next place oblige it to control itself’.³⁷ Madison here
indicates that, notwithstanding the rhetorical claim that government receives its
authority from the people, the government must in fact control and manage the
people. Modern republican government must be government of the people and
for the people, but demonstrably not government by the people.³⁸
The most distinctive aspect of modern republican government is the central
role assumed by the constitution. Although presented as an arrangement which,
by contract, establishes a framework of government, in reality the ancient idea of
the constitution continues to exercise an influence, and only by doing so does ‘the
constitution’ acquire a more general authority. One reason is that, in recognition
of the necessity of taking ‘auxiliary precautions’ against the will of majorities, the
constitution creates an elaborate institutional configuration that in due course
comes to be accepted as determining the conditions for all political action. This
tendency is reinforced by the constitution’s rigidity: by placing the provisions of
the constitution beyond the power of even clear majorities to alter,³⁹ the constitu-
tion’s ability to establish the ground rules of political action is strengthened. In
³⁵ The Federalist Papers, ibid, No 22 (Hamilton), 184: ‘The fabric of American empire ought to
rest on the solid basis of the consent of the people. The streams of national power ought to flow imme-
diately from that pure, original fountain of all legitimate authority’ (emphasis in original).
³⁶ The Federalist Papers, ibid, No 10 (Madison), 126: ‘A republic, by which I mean a government
in which the scheme of representation opens a different prospect and promises the cure for which we
are seeking’. See further Bernard Manin, The Principles of Representative Government (Cambridge:
Cambridge University Press, 1997), 1: ‘Contemporary democratic governments have evolved from
a political system that was conceived by its founders as opposed to democracy. . . . what today we
call representative democracy has its origins (established in the wake of the English, American and
French revolutions) that was in no way initially perceived as a form of democracy or of government
by the people’.
³⁷ The Federalist Papers, above n 4, No 51 (Madison), 320.
³⁸ This is the critical difference between Rousseau (see above ch 4, 112–119) and the Federalists:
see Ulrich K Preuss, Constitutional Revolution: The Link between Constitutionalism and Progress
Deborah Lucas Schneider (trans) (Atlantic Highlands, NJ: Humanities Press, 1995), 16: ‘For
Rousseau, the will of the people is the ultimate source of any kind of political authority; to bind
it is tantamount to degrading the people into status of slaves . . . Th is was of course the opposite of
what the Federalists strongly believed . . . While Rousseau wanted to protect the people against the
constitution, the Federalists wanted to construct a constitutional shield against the people’s own
myopia, injustice, irresponsibility, irrationality, and stupidity. While the former viewed the people
as superior to the constitution, the latter thought, conversely, that the constitution is of a higher
order than the people’.
³⁹ See US Constitution, Art V: amendments can be proposed either by Congress with the sup-
port of two-thirds of each House or by resolution of the legislatures of two-thirds of the states.
Proposed amendments must be ratified by three-fourths of the states.
due course, the constitution, initially understood to establish the office of govern-
ment, becomes constitutive of the entire political sphere. And within this polit-
ical sphere government is authorized to carry on its activities independently of
the views of the ordinary people.
This evolving arrangement—which involves a blurring of the distinction
between ancient and modern ideas of the constitution—has a significant impact
on the relationship between revolution and constitution. Once the constitution
has established general authority, ‘the people’ that provided the source of the
legitimacy of government becomes a concept constructed within the same polit-
ical space. Governments act in the name of and for the benefit of the people, and
a variety of institutional devices are established to ensure that government acts in
‘the public interest’. But since the government establishes its authority through its
ability to control and manage the people, this concept of ‘the people’ is increas-
ingly shaped by these very same institutional arrangements. With the adoption
of modern republican constitutions, constitutions that initially presented them-
selves as contracts amongst a prior existing group of people to establish a frame-
work of government expand to fill the entire political space. The constitution
ends up by constructing ‘the people’ in whose name the established governmen-
tal authority acts.
This feature of modern republican constitutions casts a surprising light on the
relationship between constitution and revolution. The ‘we’ of the Declaration
in 1776 that holds certain truths to be ‘self-evident’ and the ‘we the people’ who
in 1787 are said to ‘ordain and establish this Constitution for the United States
of America’ present themselves as expressions of an already existing corporate
group: a nation. But subsequently—that is, once the authority of the constitution
is established—the body of ‘the people’ who have taken revolutionary action and
established a new constitution is constituted by the structures and principles of
the constitution that they themselves authorized.⁴⁰ Constituent power, it might
be said, can be understood only through the prism of constituted authority.⁴¹ If
this is the case, it is difficult to conceive how the people—the multitude—retain
the revolutionary posture they exhibited in the Declaration.⁴²
⁴⁰ This is the problem that Rousseau had foreseen, and which he resolves through the figure of
the Lawgiver: see above ch 4, 116–117.
⁴¹ See Antonio Negri, Insurgencies: Constituent Power and the Modern State Maurizia Boscagli
(trans) (Minneapolis: University of Minnesota Press, 1999), ch 4. Th is argument has led to the
development of a radical line of French thought claiming that this entire constitutionalized politi-
cal space is the sphere of ‘the police’ and that the term ‘politics’ must be reserved for action that
challenges this constituted power: see, eg, Jacques Rancière, Disagreement: Politics and Philosophy
Julie Rose (trans) (Minneapolis: University of Minnesota Press, 1999); Alain Badiou, Metapolitics
Jason Barker (trans) (London: Verso, 2005).
⁴² See Jeff rey K Tulis, ‘Constitution and Revolution’ in Sotirios A Barber and Robert P George
(eds), Constitutional Politics: Essays on Constitution Making, Maintenance and Change (Princeton,
NJ: Princeton University Press, 2001), 116–127, 125: ‘The normative legitimacy of the Constitution
depends upon the possibility of a people publicly defining itself and consenting once again. But the
same Constitution constitutes a people that would not be able to do so’.
This complicated aspect of modern constitutions is addressed by Hannah
Arendt through a comparison of the American and French revolutionary experi-
ences. Arendt argues that although the French Declaration of the Rights of Man
and the Citizen of 1789 was modelled on the precedent of the American Bill of
Rights, the former had been designed to perform a different function.⁴³ Rather
than specifying limitations on governmental power within an already established
body politic, the French Declaration ‘was meant to constitute the source of all
political power, to establish not the control but the foundation-stone of the body
politic’.⁴⁴ That is, the rights laid down in the French Declaration ‘were meant to
spell out primary positive rights, inherent in man’s nature, as distinguished from
his political status, and as such they tried indeed to reduce politics to nature’.⁴⁵
Far from being conceived as limitations on constitutional government, Arendt
argues that the rights of the French Declaration were intended to provide the
basic foundation of government. They were, in short, intended to be constitutive
and not merely regulative provisions.
The critical difference is thrown into relief with respect to the social question.
The claim that ‘all men are born equal’ was, Arendt suggests, ‘fraught with truly
revolutionary implications in a country which still was feudal in social and polit-
ical organization’, but it ‘had no such implication in the New World’.⁴⁶ She fur-
ther argues that notwithstanding the natural rights basis to the Declaration of
Independence,⁴⁷ the American Bill of Rights acknowledged the fact that these
rights were the products of a particular culture and historical experience, whereas
the French Declaration ‘proclaims the existence of rights independent of and
outside the body politic’.⁴⁸ The trouble with such rights claims—human rights
claims—is that they have effect only when institutionalized within an existing
governmental regime, and ‘they were invoked only as a last resort by those who
had lost their normal rights as citizens’.⁴⁹
Arendt presents the relationship between constitutional rights and revolution-
ary principles in stark fashion. She offers an account of the status of the American
constitutional arrangements as they were originally perceived, but not as they
have now become. Drafted by a nation and intended for the purpose of control-
ling its government, these instruments have now, arguably, acquired a symbol-
ic—indeed, sacred—constitutional status. If this is so, it blurs the distinction
that Arendt draws between American and French revolutionary claims. The
American claims certainly remain state-based rather than universal. But rather
⁴³ On the nature of these influences, see the classic essay: Georg Jellinek, The Declaration of the
Rights of Man and of Citizens: A Contribution to Modern Constitutional History Max Farrand (trans)
(New York: Henry Holt & Co, 1901).
⁴⁴ Hannah Arendt, On Revolution (Harmondsworth: Penguin, 1973), 109.
⁴⁵ Ibid, 108.
⁴⁶ Ibid, 148. Arendt did not ignore the institution of slavery but argued that the American
Revolution was ‘the only revolution in which compassion played no role in the motivation of the
actors’ and that ‘the slave . . . was wholly overlooked’: ibid, 71.
⁴⁷ See ibid, 193–194. ⁴⁸ Ibid, 149. ⁴⁹ Ibid.
than being regulative limitations on government, they have become constitutive

of the entire political space.
Subject to this qualification, Arendt’s treatment of the relation between revo-
lution and constitution is important. Her specific argument on the constitution/
revolution relation is underpinned by the claim that ‘it is futile to search for an
absolute to break the vicious circle in which all beginning is inevitably caught’.⁵⁰
This is also a central feature of her general concept of politics.⁵¹ For Arendt, the
key questions of politics derive not so much from the relationship between revo-
lution and constitution as from that between power and authority.
The lasting achievement of the American Revolution, Arendt claims, is to have
reminded us of the contemporary importance of Roman republican thought. It
teaches us that ‘the principle of potestas in populo is capable of inspiring a form
of government only if one adds, as the Romans did, auctoritas in senatu, author-
ity resides in the senate, so that government itself consists of both power and
authority, or, as the Romans had it, senatus populusque Romanus’.⁵² When French
revolutionaries claimed that power resided in the people, ‘they understood by
power a “natural” force whose source and origin lay outside the political realm,
a force which in its very violence had been released by the revolution and like a
hurricane had swept away all institutions of the ancien regime’.⁵³ Feeling that
they themselves were a product of the accumulated, unorganized force of the
multitude, they were unable to distinguish between power and violence and ‘con-
vinced that all power must come from the people, opened the political realm to
this pre-political, natural force of the multitude and they were swept away by it,
as the king and the old powers had been swept away’.⁵⁴ The American revolution-
aries, by contrast, understood that power stood opposed to pre-political natural
violence.
Power comes into existence, Arendt claims, ‘when and where people would get
together and bind themselves through promises, covenants, and mutual pledges:
only such power, which rested on reciprocity and mutuality, was real power’, and
it is only this type of political power that can provide the basis for legitimacy and
authority.⁵⁵ Arendt’s analysis has radical implications. The modern republican
constitution is not solely a contract that establishes and limits government, and
neither can it be conceived in foundational terms as the constitution of the pol-
itical sphere. Rather, this modern concept of the constitution provides an insti-
tutional framework with the potential to become the medium through which
the sum total of power and authority generated within the political sphere is
expressed.
⁵⁰ Ibid, 204.
⁵¹ See Hannah Arendt, ‘Introduction into Politics’ in her The Promise of Politics Jerome Kohn
(ed) (New York: Schocken Books, 2005), 93–200, 95: ‘Politics arises between men, and so quite
outside of man. There is therefore no real political substance. Politics arises in what lies between men
and is established as relationships’ (emphasis in original).
⁵² Arendt, above n 44, 178. ⁵³ Ibid, 181. ⁵⁴ Ibid. ⁵⁵ Ibid.
IV. The Constitution as Fundamental Law
The ambivalent nature of the modern constitutional contract is intensified by

the claim that the constitution has the status of fundamental law. In the ancient
understanding of the concept—the constitution as the laws, traditions, and
practices that make up the body politic—the constitution was obviously ‘fun-
damental law’. But in that world view, the constitution was not conceived as a
man-made instrument, and ‘fundamental law’ was an expression of traditional
beliefs about the ‘natural’ ordering of things. In the modern understanding, the
written constitution lays down the basic rules of law-making and, as a set of rules
that cannot be amended by the ordinary processes of law-making, presents itself
as fundamental law. But what does this claim mean?
In one sense, it simply expresses the hierarchical relationship between ordin-
ary law enacted by legislatures and the constitutional rules that found their jur-
isdictional authority. But even in that limited sense, the means by which this
relationship is enforced is questionable. This issue of enforcement came to prom-
inence early on in the establishment of modern constitutions. In the older mean-
ing of the term, ‘fundamental law’ was understood to be a special type of law
that bound ‘morally and politically, not legally’.⁵⁶ This is the phenomenon that
in public law is expressed by the notion of droit politique—those principles and
practices that make up the constitution of the state. With the establishment of
modern constitutions, however, a new enforcement mechanism is devised: the
technique of judicial review. The concept of fundamental law in modern con-
stitutional regimes is associated with the emergence of the institution of judicial
review.
The relationship between judicial review and fundamental law has developed
in stages. First, the constitution is recognized as a type of fundamental law.
Secondly, the judiciary presents itself as interpreters and enforcers of this fun-
damental law. Finally, the judiciary asserts its claim to be the supreme guardian
of the constitution. With these developments, the meaning of fundamental law
in the modern context is significantly altered. As modern republican constitu-
tions evolve and acquire authority, the claim that the constitution has the status
of fundamental law not only expresses a formal hierarchical relationship within
the structure of positive law; it also takes on a broader meaning. This ambiguity
comes from the tendency of modern regimes to blur the distinction between the
⁵⁶ Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, CT: Yale
University Press, 1990), 42. See also Gordon S Wood, The Creation of the American Republic, 1776–
1787 (Chapel Hill: University of North Carolina Press, rev edn, 1998), 273–282; Kramer, above n
10, 24: ‘[In the] conceptual framework of eighteenth-century legal thought . . . [c]onstitutional or
fundamental law subsisted in an independent modality, distinct from both politics and from the
ordinary law interpreted and enforced by courts. It was a special category of law. It possessed criti-
cal attributes of ordinary law: its obligations were meant to be binding, for example, and its content
was not a matter of mere will or policy but reflected rules whose meaning was determined by argu-
ment based on precedent, analogy, and principle’.
constitution of government (regulated by positive law) and the constitution of the

state (regulated by droit politique).
Such controversies featured prominently in the debates of the early years of
the American republic. These debates were concerned not so much with the
Constitution’s status as fundamental law, as with the role of the judiciary in inter-
preting and enforcing that fundamental law. Article VI of the US Constitution
states that the Constitution is ‘the supreme Law of the Land’, but this essentially
expresses the position that the Constitution, alongside the laws enacted by the
Congress and treaties made under the authority of the United States, together
form the law of the land. That is, Article VI determines the authoritative sources
of law, but has nothing to say about hierarchies in law. Consequently, even if it
was generally accepted at the time of drafting that the Constitution was funda-
mental law, this merely poses the question of what institutional responsibilities
that claim entailed. The record of debates at the 1787 Convention suggest that
the term ‘fundamental law’ was commonly understood in the old sense, as a type
of law that bound morally and politically rather than through the mechanisms
of ordinary law.⁵⁷ It is on the institution of judicial review that the main point of
this controversy revolves.
The US Constitution does not expressly confer any power of judicial review
on the federal courts.⁵⁸ It was not until the landmark case of Marbury v Madison
in 1803 that the court asserted its power to refuse to give effect to congressional
legislation contrary to the court’s interpretation of the Constitution.⁵⁹ The neces-
sity of judicial review was justified by Chief Justice Marshall on the basis of three
main propositions:
[1] All those who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every
such government must be that an act of the legislature, repugnant to the constitution,
is void.
[2] It is emphatically the province and duty of the judiciary department to say what the
law is. . . . If then the courts are to regard the constitution; and the constitution is superior
to any ordinary act of the legislature; the constitution, and not such ordinary act, must
govern the case to which they both apply.
[3] Those then who controvert the principle that the constitution is to be considered, in
court, as a paramount law, are reduced to the necessity of maintaining that courts must
close their eyes on the constitution, and see only the law. This doctrine . . . would declare,
that if the legislature shall do what is expressly forbidden, such act, notwithstanding the
⁵⁷ See Snowiss, above n 56, 42. Thomas C Grey, ‘Origins of the Unwritten Constitution:
Fundamental Law in American Revolutionary Thought’ (1977–1978) 30 Stanford Law Review
843–893, esp 888–893.
⁵⁸ US Constitution, Art III: ‘(1) The judicial Power of the United States, shall be vested in one
supreme Court . . . (2) The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution . . . ’.
⁵⁹ 5 US (1 Cr) 137 (1803).
express prohibition, is in reality ineffectual. It would be giving to the legislature a practi-
cal and real omnipotence, with the same breadth which professes to restrict their powers
within narrow limits.⁶⁰
Marshall’s justifications of judicial review, indeed his entire involvement in the
case,⁶¹ have been the subject of widespread criticism.⁶² His first proposition is
unexceptional, but it does not itself justify judicial review: modern written con-
stitutions might accept the principle of paramountcy but not vest the power of
enforcement in courts.⁶³ The second conflates judicial review with the ordin-
ary function of courts in interpreting statutes and reconciling conflicts; English
courts, for example, do this as a matter of course by applying the principle that
the provision that is later in time prevails. The third proposition suggests there
can be no gradation between complete judicial ignorance of the constitution and
substantive constitutional review; a jurisdictional control that requires legislative
compliance with manner and form restrictions does not, for example, entail sub-
stantive constitutional review. Underlying all Marshall’s claims is the assumption
that a written constitution is simply another type of written law. Only on that
basis is it acceptable to extend his arguments from the ordinary processes of jur-
isdictional control to claim the expansive power of constitutional judicial review.
Although Marshall’s argument in Marbury drew heavily on Hamilton’s cele-
brated arguments in The Federalist Papers No 78,⁶⁴ prior to the nineteenth cen-
tury the status of judicial review remained uncertain. The framers were agreed
that the Constitution was fundamental law, but there was no similar consensus
over judicial review.⁶⁵ When, for example, in The Federalist Papers No 51 Madison
⁶⁰ Ibid, 177–178. See Laurence H Tribe, American Constitutional Law (Mineola, NY:
Foundation Press, 1978), 21–22.
⁶¹ See Archibald Cox, The Role of the Supreme Court in American Government (New York: Oxford
University Press, 1976), 9: ‘The Presidential election of 1800 climaxed a political upheaval in which
the Federalist Party yielded control of the Legislative and Executive Branches to the Jeffersonian
Democrats. Thomas Jefferson supplanted John Adams as President of the United States. Most
of the judges, however, were Federalists; and their tenure was for life. Just before leaving office
President Adams and his Secretary of State executed the commission of one Marbury to be Justice
of the Peace, but the Secretary forgot to deliver it. Ironically, the absent-minded Secretary was John
Marshall, who was about to take over as Chief Justice of the United States and would write the
opinion in the case that resulted from his negligence’.
⁶² See esp William W Van Alstyne, ‘A Critical Guide to Marbury v. Madison’ (1969) 18 Duke
Law Journal 1–47. For context, see Paul Kahn, The Reign of Law: Marbury v. Madison and the
Construction of America (New Haven, CT: Yale University Press, 1997), ch 1.
⁶³ Cf the French constitutional arrangements. For the classic treatment, see Alexis de
Tocqueville, Democracy in America [1835] Henry Reeve (trans) Daniel J Boorstin (intro) (New
York: Vintage Books, 1990), vol 1, ch 6 (esp 100–101). For the modern understanding, see Martin
Harrison, ‘The French Constitutional Council: A Study in Institutional Change’ (1990) 38
Political Studies 603–619.
⁶⁴ See esp The Federalist Papers, above n 4, No 78 (Hamilton), 438–439. Note that Hamilton
also founds his argument for constitutional judicial review on ordinary principles of jurisdictional
control: ‘There is no position which depends on clearer principles than that every act of a delegated
authority, contrary to the tenor of the commission under which it is exercised, is void’ (ibid, 438).
⁶⁵ See Wood, above n 56, 292: ‘There was . . . no logical or necessary reason why the notion of fun-
damental law, so common to Englishmen for over a century, should lead to the American invocation
addressed the need to maintain ‘auxiliary precautions’ to guard against the abuse
of power, he did not include the judiciary in these arrangements. Placing great
emphasis on the necessity of ‘so contriving the interior structure of the govern-
ment as that its several constituent parts may, by their mutual relations, be the
means of keeping each other in their proper places’, both judiciary and the insti-
tution of judicial review are omitted.⁶⁶ It is unlikely that this was an oversight,
since Madison had elsewhere commented on the difficulties of judicial review and
‘unlike Hamilton, who sought a centralized power of control, Madison sought
security in institutional conflict and decentralization’.⁶⁷
In the early years of the republic, then, there was a consensus that the leg-
islature could not act contrary to the Constitution and that any such act was
void. But there was no consensus on whether the judiciary could refuse to enforce
an unconstitutional act. The principle of legislative omnipotence may have been
rejected, but the principle of legislative supremacy had not. Being written, the
Constitution was superior to ordinary law: it ‘bound subsequent legislation in
a way that European fundamental law . . . could not’.⁶⁸ But this commitment to
writing ‘in no way made fundamental law the kind of law rightly amenable to
judicial application, interpretation, and enforcement; it was important only as
a vehicle for fundamental law’s explicitness and thereby for the certitude of its
content and status’.⁶⁹ During these early years, the view taken by many was that
the Constitution was directed only at the legislature, and that any attempt by the
judiciary to refuse to enforce a properly enacted law on the ground that it was
contrary to the Constitution amounted to a usurpation of power.⁷⁰
The critical question was therefore the one that Marshall in Marbury skil-
fully glided over: who has the authority to decide whether an act is contrary
of it in the ordinary courts of law. Indeed in an important sense the idea of fundamental law actually
worked to prohibit any such development, for it was dependent on such a distinct conception of public
law in contrast to private law as to be hardly enforceable in the regular court system’.
⁶⁶ The Federalist Papers, above n 4, No 51 (Madison), 320, 318–319. See also No 49 (Madison),
313: ‘The several departments being perfectly co-ordinate by the terms of their common com-
mission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the
boundaries between their respective powers’.
⁶⁷ John E Finn, ‘The Civic Constitution: Some Preliminaries’ in Barber and George (eds), above
n 42, 41–69, 46. Note also Jefferson’s conviction, expressed in 1819, that ‘each of the three depart-
ments has equally the right to decide for itself what is its duty under the constitution’: cited in
Kramer, above n 10, 106.
⁶⁸ Snowiss, above n 56, 25.
⁶⁹ Ibid. Note the comment of John Taylor in 1820: ‘I have never heard before so novel a political
doctrine, as that courts of justice are instituted to dispense political law to political departments. It
is found in no writer; it has never been a component part of any government; and it is highly prob-
able when the constitution was made, that not a single person in the United States contemplated
the idea, of its having empowered the Federal Supreme Court to divide political powers between
the Federal and State governments, just as it does money between plaintiff and defendant’: cited in
Kramer, above n 10, 153–154.
⁷⁰ It might be noted, eg, that ‘as late as 1807 and 1808, judges were impeached by the legisla-
tures of Ohio for holding Acts of that body to be void’: see James B Thayer, ‘The Origin and Scope
of the American Doctrine of Constitutional law’ (1893) 7 Harvard Law Review 129–156, 134.
to the Constitution?⁷¹ The illustrations he drew on in Marbury were typical of
the period, but whose importance has since waned; namely, acts that are unam-
biguously contrary to the provisions of the constitution. At the founding, it was
widely accepted that, in the words of James Wilson: ‘Laws may be unjust, may be
unwise, may be dangerous, may be destructive; and yet not be so unconstitutional
as to justify the Judges in refusing to give them effect’.⁷² To the extent that it was
recognized that the judiciary had a role in determinations of unconstitutionality,
these were conceived to be ‘not . . . legal acts but public or political ones’.⁷³ And
unconstitutionality itself was felt ‘not to be determined by judicial exposition
of written supreme law but to consist of violation of long-standing and publicly
acknowledged first principles of fundamental law, written or unwritten’.⁷⁴ There
was certainly no expectation that the judiciary would ever have a role in deter-
mining conflicting interpretations of general constitutional provisions.
The lasting significance of Marbury lies in its pivotal role in altering this expec-
tation. This achievement was principally down to the statecraft of Marshall who,
as the longest serving Chief Justice in history, became the dominating presence
on the Supreme Court for over three decades until his death in 1835. ‘After engi-
neering a near monopoly on opinion writing in long, detailed, masterful, and
meticulous opinions’, Snowiss comments, Marshall instilled a general perception
of the Constitution as a kind of supreme ordinary law.⁷⁵ This transformation was
accomplished by a threefold strategy: first, by eliminating from court judgments
any background assumptions based on traditions of fundamental law or natural
law; secondly, when undertaking judicial review, by using a style of judgment
that treated constitutional interpretation as close textual analysis; and, thirdly, by
abandoning the practice of seriatim opinions, replacing it with a single opinion of
the court—in which the Chief Justice’s view invariably prevailed.⁷⁶
⁷¹ See Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics
(New Haven, CT: Yale University Press, 2nd edn, 1986), 2: ‘To rest the edifice [of judicial review]
on the foundation Marshall supplied is ultimately to weaken it, as opponents of the function of
judicial review know well. . . . Not only are the props it provides weak, and hence dangerous; they
also support a structure that it not quite the one we see today. Marshall’s proofs are not only frail,
they are too strong; they prove too much. Marbury v. Madison in essence begs the question. What
is more, it begs the wrong question’. See also Cox, above n 61, 14: ‘Chief Justice Marshall’s opin-
ion . . . presents only the extreme case in which anyone can see whether the law is constitutional or
not. . . . The real question . . . is not the one which the Chief Justice presents; it is, whose view shall
prevail on a debateable point of interpretation: the view of the Court or of the President and the
Congress. Indeed, the question is more complicated than this because the proper application of the
Constitution in a given situation calls sometimes for the construction of the text, but usually for
appraisal of disputed facts (including social and economic conditions), and for weighing the rela-
tive importance of opposing interests rather than construing words’.
⁷² James Wilson in Records of the Federal Convention of 1787 Max Farrand (ed) (New Haven,
CT: Yale University Press, 1937), vol 2, 73: cited in Snowiss, above n 56, 41.
⁷³ Snowiss, ibid, 37. ⁷⁴ Ibid, 43. ⁷⁵ Ibid, 174.
⁷⁶ Edward S Corwin, John Marshall and the Constitution: A Chronicle of the Supreme Court
(New Haven, CT: Yale University Press, 1919), chs 1 and 5; James F Simon, What Kind of Nation?
Thomas Jeff erson, John Marshall, and the Epic Struggle to Create a United States (New York: Simon
& Schuster, 2002).
Through Marshall’s work, not only was the ancient sense of the constitution
as fundamental law buried; so too was the idea that the modern constitution was
a form of droit politique. Instead, the Constitution was transformed into a new
type of positive law, and the judiciary took on the duty, through the forensic
processes of judicial review, of determining its meaning and enforcing its provi-
sions. Earlier claims—that the Constitution reduced to written rules only some
basic political values and principles, that such rules merely provided guidelines
on public action, that the primary agency of enforcement was not the judiciary
but public opinion— were all overthrown. In the new understanding, rules did
not find a place in the Constitution because they were fundamental; they were
fundamental because they were incorporated into the Constitution.
Marshall rested his opinion in Marbury on the weight of Hamilton’s analysis
in The Federalist Papers, that, holding neither the power of sword nor purse, the
judiciary possessed neither force nor will, but only judgment.⁷⁷ The authority
of the judiciary rested on its relative weakness, sustained only by its independ-
ence and the integrity of its own processes and judgment. Hamilton’s argument
reinforced the conviction amongst both the judiciary and the public that, in the
exercise of constitutional review by the courts, a strict analytic logic must operate
in preference to any demonstrable exercise of political prudence.
Through this process, the provisions of the US Constitution became positiv-
ized, de-politicized, individualized, and legalized. The critical technique that
effected this transformation was that of judicial review. Even though the proce-
dure only came to maturation during the mid-nineteenth century, this technique
was pioneered by the Marshall court.⁷⁸ ‘What in the final analysis gave meaning
to the Americans’ conception of a constitution’, commented Wood, ‘was not its
fundamentality or its creation by the people, but rather its implementation in the
ordinary courts of law’.⁷⁹
Only with this conversion of ‘modern’ fundamental law (ie, droit politique) into
positive law could the court extend its authority with respect to the Constitution,
first by asserting its role in resolving conflicting interpretations and then by claim-
ing its exclusive authority to do so. It is now commonplace to regard the constitu-
tional role of the judiciary as a matter of the routine enforcement of positive law.
But it was not always so: even at the end of the nineteenth century, Thayer was
arguing that constitutional judicial review ‘has already been carried much too
far’.⁸⁰ The restraints of the nineteenth-century cases, in which the courts held
that ‘an Act of the legislature is not to be declared void unless the violation of
⁷⁷ The Federalist Papers, above n 4, No 78 (Hamilton), esp at 437.

⁷⁸ Some might object to this periodization, pointing to Marshall’s recognition of the singular
character of constitutional judicial review in his proclamation in McCulloch v Maryland 17 US
(4 Wheat) 316, 407 (1819): ‘We must never forget that it is a constitution we are expounding’
(emphasis in original). But the emphasis could just as significantly have been placed on the last
clause (we are expounding): it is the judiciary, Marshall was asserting, that possesses the authority
to interpret the Constitution.
⁷⁹ Wood, above n 56, 291. ⁸⁰ Thayer, above n 70, 156.
the constitution is so manifest as to leave no room for reasonable doubt’ or that a
law ought not be questioned ‘unless it is so obviously repugnant to the constitu-
tion that when pointed out by the judges, all men of sense and reflection in the
community may perceive their repugnancy’, were no longer operative.⁸¹ Thayer
warned that this ‘checking and cutting down of legislative power by numerous
detailed prohibitions in the constitution, cannot be accomplished without mak-
ing the government petty and incompetent’.⁸² Noting that ‘under no system can
the power of the courts go far to save a people from ruin’, he concluded by advo-
cating the need to restore the Madisonian device of maintaining institutional
checks and balances.⁸³
Thayer was swimming against the tide: between 1789 and 1869 the Supreme
Court invalidated only six Acts of Congress, and it was only after 1890 that this
power came to be more frequently used.⁸⁴ Thereafter, the main point of conten-
tion was not that of the extent of judicial authority (though this continued to
be a source of controversy in some quarters) but whether that judicial author-
ity was exclusive and final.⁸⁵ This was the question first raised in the Dred Scott
case of 1856, in which the Supreme Court, in a ruling that contested the legisla-
tive power to prohibit or restrict slaveholding, in effect converted slaveholding
into a right.⁸⁶ The Supreme Court’s ruling did not go unchallenged. In his First
Inaugural Address of 1861, Lincoln specifically refuted the notion that the judici-
ary had the power to compel other branches of government to recognize the right
to own slaves:
I do not forget the position assumed by some that constitutional questions are to be
decided by the Supreme Court, nor do I deny that such decisions must be binding in
any case upon the parties to a suit as to the object of that suit, while they are also enti-
tled to very high respect and consideration in all parallel cases by other departments of
the Government. . . . At the same time, the candid citizen must confess that if the policy
of the government, upon vital questions affecting the whole people is to be irrevocably
fi xed by decisions of the Supreme Court, the instant they are made in ordinary litigation
between parties in personal actions, the people will have ceased to be their own rulers,
having to that extent practically resigned their government into the hands of that emi-
nent tribunal.⁸⁷
⁸¹ Ibid, 140, 142. ⁸² Ibid, 156. ⁸³ Ibid.

⁸⁴ Kammen, above n 9, 31. The numbers nonetheless remained small in comparison with twen-
tieth-century experience. Kramer, above n 10, 213, notes that the court struck down 30 federal laws
between 1990 and 2000, the most in its history. The late-nineteenth century is nonetheless identi-
fied by many as the critical moment in which the practice of judicial review became consolidated:
see, eg, Robert Lowry Clinton, Marbury v Madison and Judicial Review (Lawrence: University of
Kansas Press, 1989), 162.
⁸⁵ See Robert H Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American
Power Politics (New York: Knopf, 1941).
⁸⁶ Dred Scott v Sandford 60 US 393 (1857).
⁸⁷ Abraham Lincoln, First Inaugural Address, 4 March 1861: <http://avalon.law.yale.edu/19th
_century/lincoln1.asp>.
The issue of slaveholding led to the Civil War, after which the Fourteenth
Amendment overruled the Dred Scott decision and required states to provide
equal protection of the laws to all persons within their jurisdictions.⁸⁸
The conflict over slaveholding merely delayed for a short period the general ten-
dency to treat the Constitution as ordinary law and to maintain that the judiciary
possessed exclusive authority to determine the meaning of this supreme ordinary
law. This conviction has since been expressed in a multiplicity of forms, extend-
ing from Governor Hughes’ aphorism that ‘we are under a Constitution, but the
Constitution is what the judges say it is’,⁸⁹ to Felix Frankfurter’s claim in 1930
that ‘in good truth, the Supreme Court is the Constitution’.⁹⁰ This trend reaches
its culmination in the Supreme Court’s ruling in Cooper v Aaron in 1958.⁹¹ This
case, which the court recognized as raising ‘questions of the highest import-
ance to the maintenance of our federal system of government’,⁹² concerned the
enforcement in Little Rock, Arkansas of a plan for racial desegregation of schools
in compliance with the court’s earlier ruling in Brown v Board of Education on the
interpretation of the Fourteenth Amendment.⁹³ In an opinion, ‘signed, as had
not been done before and has not been done since, by each justice individually’,⁹⁴
the court stated:
Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land’.
In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the
Constitution as ‘the fundamental and paramount law of the nation’, declared in the nota-
ble case of Marbury v. Madison . . . that ‘It is emphatically the province and duty of the
judiciary department to say what the law is’. This decision declared the basic principle
that the federal judiciary is supreme in the exposition of the law of the Constitution, and
⁸⁸ The enactment of the Fourteenth Amendment has itself also given rise to a major contro-
versy which revolves around issues of fundamental law and ordinary law: see William E Nelson,
Th e Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA:
Harvard University Press, 1988), esp 8: ‘Those who adopted the Fourteenth Amendment did
not design it to provide judges with a determinative text for resolving this confl ict in a narrow
doctrinal fashion. They wrote the amendment for a very different audience and purpose: to reaf-
fi rm the lay public’s longstanding rhetorical commitment to general principles of equality, indi-
vidual rights, and local self-rule. Confl ict between these principles, though foreseeable, was not
thought to be inevitable. Hence the framers and ratifiers of the Fourteenth Amendment could
reasonably hope that confl ict would not arise, rather than assume the contrary and proceed to
work out whether and to what degree either the principle of rights or the principle of legislative
freedom should have priority’.
⁸⁹ Charles Evan Hughes, ‘Speech before Elmira Chamber of Commerce, 3 May 1907’ in his
Addresses, 1906–1916 (New York: Putnams, rev edn, 1916), 179–193, 185.
⁹⁰ Cited in Kammen, above n 9, 8. ⁹¹ 358 US 1 (1958). ⁹² Ibid, 4.
⁹³ 347 US 483 (1954). The school board in Little Rock had adopted a plan to desegregate
gradually and the state’s governor, who was opposed to desegregation, orchestrated demonstra-
tions against the plan. While the lower courts found that public disorder was a reason for delaying
desegregation, the Supreme Court disagreed: see Richard Kluger, Simple Justice: The History of
Brown v. Board of Education and Black America’s Struggle for Equality (London: Deutsch, 1977),
753–754.
⁹⁴ Joseph Goldstein, The Intelligible Constitution (New York: Oxford University Press, 1992), 47.
that principle has ever since been respected by this Court and the Country as a perma-
nent and indispensable feature of our constitutional system.⁹⁵
With this statement, the court brought together a line of argument which began
with Marbury and culminated in the claims not so much of the supremacy of
the Constitution, but of its status as ordinary law and, most importantly, of the
supremacy of the judiciary in expounding its meaning. It is not merely that the
Constitution itself is supreme; so too is the court’s interpretation of the meaning
of its provisions.
A major theme in American constitutional development, then, has been the
erosion of belief in the idea of the Constitution as a type of fundamental law
(droit politique) different in kind to that of the ordinary law. The Constitution’s
‘fundamental’ character is now taken to express two specific types of hierarchical
relation: first, a hierarchical relation between laws (the hierarchy between ordin-
ary law and positive constitutional law), and, secondly, the hierarchical relation
between the judiciary and other branches of government with respect to consti-
tutional interpretation.⁹⁶ It no longer signifies its existence as a distinctive type
of public law.
This development has considerably elevated the status of the judiciary within
the state. Judges have acquired a unique but ambivalent role. ‘Though the jus-
tices worry incessantly about the democratic legitimacy of their institution’,
notes Eisgruber, ‘they insist on absolute deference to their interpretations of the
Constitution’.⁹⁷ This is problematic because, ‘by treating the Constitution as a set
of legal restraints rather than an instrument enabling self-government, the Court
has made more plausible the idea that constitutional interpretation is exclusively
the province of lawyers—a professional elite who may have no special insight into
justice or politics but who are experts in the manipulation of fine-grained rules’.⁹⁸
The history of American constitutionalism, in large part at least, is the history
of the transformation of fundamental law into supreme ordinary law and the
increasing tendency to treat the history of the Constitution as the history of the
work of its Supreme Court.⁹⁹
⁹⁵ Above n 91, 18.

⁹⁶ See, eg, United States v Morrison 120 SCt 1740 (2000) 1753 (per Rehnquist CJ): ‘No doubt
the political branches have a role in interpreting and applying the Constitution, but ever since
Marbury this Court has remained the ultimate expositor of the constitutional text’.
⁹⁷ Christopher L Eisgruber, ‘Judicial Supremacy and Constitutional Distortion’ in Barber and
George (eds), above n 42, 70–90, 71.
⁹⁸ Ibid. Eisgruber also notes that the ‘Fourteenth Amendment is oddly inconspicuous in much
of the Supreme Court’s jurisprudence’ and that ‘from the standpoint of judicial supremacy, the
Fourteenth Amendment is an embarrassment. Section 5 of the amendment explicitly recognizes
Congressional authority to enforce the Constitution or, at least, one very important part of the
Constitution. By contrast, the Constitution remains silent about judicial authority to enforce the
Constitution’ (ibid, 71, 72–73: emphasis in original).
⁹⁹ Kammen, above n 9, 9: ‘Th is propensity to conflate the Court and the Constitution is hardly
limited to grass roots America. It seems to have been shared by a great many scholars because the
V. Constitutional Maintenance
The American narrative is a particularly strong expression of a common phenom-

enon. With the establishment of modern constitutions, the medieval notion of
fundamental law—which, in the modern world, finds its analogy in public law as
political right—has become submerged. This positivization of public law through
its incorporation into modern constitutional frameworks has led the judiciary
to claim institutional responsibility for ultimate interpretation of its meaning.
Just as courts possess authority to interpret and enforce contracts, so now they
have assumed authority to interpret and enforce the constitutional contract. This
marks the triumph of ordinary law, a vindication of Dicey’s parochial claims
about the importance of the rule of law and of the constitution being ‘the result of
the ordinary law of the land’.¹⁰⁰
The problem is this: within modern regimes, public law—the maintenance
of the ‘fundamental law’ or the ‘constitution of the state’—cannot simply dis-
appear, unless one believes that legalism can altogether abolish politics as the
practical art of negotiating conflicting claims of right.¹⁰¹ The question must
therefore be asked: through what processes are the ongoing elaborations of pol-
itical right undertaken? How is the constitution maintained in the face of basic
changes in the constitution of the state?¹⁰²
In modern constitutions there is, of course, invariably provision for amend-
ment, as in Article V of the US Constitution.¹⁰³ But recourse to such powers of
constitutional amendment—commonly conceived as a special institutionalized
method of invoking the authorizing power of the people—is not without its dif-
ficulties. Although the ‘constitutional road to the decision of the people ought to
be marked out and kept open’, argued Madison, it ought to be reserved only for
‘certain great and extraordinary occasions’. Used too frequently, it would ‘carry
an implication of some defect in the government’ and this could ‘deprive the
government of that veneration which time bestows on everything, and without
which perhaps the wisest and freest governments would not possess the requi-
site stability’. Invoking the amendment procedure might ‘disturb . . . the public
tranquillity by interesting too strongly the public passions’. And this, Madison
claimed, would not lead to sound decision-making: ‘the passions, . . . not the rea-
son, of the public would sit in judgment’ and ‘it is the reason, alone, of the public,
constitutional history of the United States has been primarily written as the history of Supreme
Court decisions, doctrines, procedures and personalities’.
¹⁰⁰ AV Dicey, Introduction to the Study of the Law of the Constitution [1885] (London: Macmillan,
8th edn, 1915), 198–199. See further below ch 11, 315–317.
¹⁰¹ On which, see John Gray, Enlightenment’s Wake: Politics and Culture at the Close of the
Modern Age (London: Routledge, 1995), 73–80.
¹⁰² Cf Burke, above n 2, 106: ‘A state without the means of some change is without the means
of its conservation’.
¹⁰³ Above n 39.
that ought to control and regulate the government’. The passions, by contrast,
‘ought to be controlled and regulated by the government’.¹⁰⁴
The point Madison was making is that the Constitution can do its work only
if placed above the sphere of ordinary politics. If ordinary political conflicts are
too readily transformed into constitutional questions the stability and authority
of the Constitution itself might be undermined. In these circumstances, consti-
tutional maintenance requires adherence to the form of the Constitution not-
withstanding the reality of constitutional change. Consequently, although the
US Constitution has been amended only 17 times since 1791, the Constitution—
whether understood as the office of its government or, more fundamentally, as
the nature of its body politic—has since then been radically altered. Major con-
stitutional changes can—and regularly do—take place without any alteration of
the written Constitution. How does this come about?
In part, the answer is to be found within the nature of the written Constitution
itself. Marshall had offered a clue in McCulloch, when he stated that:
A constitution, to contain an accurate detail of all the subdivisions of which its great
powers will admit, and of all the means by which they may be carried into execution,
would partake of the prolixity of a legal code, and could scarcely be embraced by the
human mind. It probably would never be understood by the public. Its nature, therefore,
requires, that only its great outlines should be marked, its important objects designated,
and the minor ingredients which compose those objects be deduced from the nature of
those objects themselves.¹⁰⁵
Because its serves a specific public function, the Constitution must offer guid-
ance on the structure, functions, and processes of government in relatively simple
language. But because of this requirement, it can only mark the ‘great outlines’,
providing a set of guidelines rather than the precision normally found in a con-
tract. There is, in addition, an important aspect of written constitutions that
Marshall fails to mention: namely, that certain key issues are either addressed in
deliberately vague formulations or are entirely overlooked in the written docu-
ment. Such practices are not the result of incompetence. Most commonly, they
are methods of circumventing issues on which it would simply not be possible to
reach consensus.¹⁰⁶ The written Constitution is neither a lawyer’s contract nor a
layman’s document:¹⁰⁷ it is a political artefact.
¹⁰⁴ The Federalist Papers, above n 4, No 49 (Madison), 313–315 (emphasis in original).

¹⁰⁵ McCulloch v Maryland 17 US (4 Wheat) 316, 407 (1819).
¹⁰⁶ For early examples of these fudges in the American context, including the subject of
McCulloch itself (ie, the decades-long conflict over the constitutionality of the establishment of a
national bank), see Stephen M Griffin, ‘Constituent Power and Constitutional Change in American
Constitutionalism’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism:
Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007), 48–66,
53–56.
¹⁰⁷ Franklin D Roosevelt, Address on Constitution Day, 17 September 1937: ‘The Constitution
of the United States was a layman’s document, not a lawyer’s contract’. See <http://www.fdrlibrary.
marist.edu/constday.html>.
This point must be borne in mind when considering the sources of constitu-
tional change. The most obvious way in which change is effected without for-
mal amendment is by way of judicial interpretation: the nature and substance
of the duties imposed on government by the Fourteenth Amendment of the US
Constitution, for example, differed significantly in 1868 when enacted after the
Civil War,¹⁰⁸ in the 1870s when the Supreme Court gave the narrowest of read-
ings to the possibility of extending the Bill of Rights to the states,¹⁰⁹ in 1896
when the Supreme Court held that that ‘equal but separate accommodations
for the white and colored races’ was constitutional,¹¹⁰ and in 1956 when the
Supreme Court held that ‘separate educational facilities are inherently unequal’
and thus unconstitutional.¹¹¹ Judicial interpretation is therefore a major source
of simultaneously maintaining and changing the Constitution. In the exercise of
this responsibility, change is effected in the precise nature of positive legal duties
imposed on constitutional actors for the purpose of maintaining the underlying
constitution of the state.
The extent to which this general constitutional function has been assumed
by the judiciary is today a major issue of debate (considered below in Chapter
12, which deals with constitutional rights). All that need be noted here is that,
given the expansion of the judicial role, it is easy to lay the charge against the
judiciary of having taken on an imperial project, which some claim amounts to
the judicial usurpation of politics.¹¹² The basic point is that, in the course of this
evolving constitutional discourse, the judiciary has taken upon itself the task
of interpreting not only ordinary law but also public law.¹¹³ The key question
is therefore whether judges possess the requisite political skills, experience, and
resources to be able to deploy this power of constitutional maintenance wisely
and effectively. And an especially important aspect of this question is the extent
to which the judicial role in constitutional review itself becomes a matter of
¹⁰⁸ See Nelson, above n 88; Michael W McConnell, ‘Originalism and the Desegregation
Decisions’ (1995) 81 Virginia Law Review 947–1140.
¹⁰⁹ Slaughterhouse Cases 83 US (16 Wall) 36 (1873); Civil Rights Cases 109 US 2 (1883).
¹¹⁰ Plessy v Ferguson 163 US 537, 540 (1896).
¹¹¹ Brown v Board of Education 347 US 483, 495 (1954). See Kluger, above n 93. The Constitution
has also altered in important ways since 1956 in the light of changes in the formulation of affirma-
tive action duties: see Michael J Perry, We the People: The Fourteenth Amendment and the Supreme
Court (Oxford: Oxford University Press, 1999), ch 4.
¹¹² The classic contemporary statement is Robert H Bork, The Tempting of America: The Political
Seduction of the Law (London: Sinclair-Stevenson, 1990). For an alternative political perspective
on the ‘judicial usurpation’ thesis, see Mark Tushnet, Taking the Constitution away from the Courts
(Princeton, NJ: Princeton University Press, 1999).
¹¹³ It might be noted that Bork’s thesis is founded on the contention that judicial activists have
claimed that ‘the Constitution cannot be law’ and that, as a consequence, they have been able to
promote an interpretation of the Constitution which is determined by ‘the morality and politics of
the intellectual or knowledge class’: Bork, above n 112, 8. By contrast, the argument being made
here is that the overwhelming consensus amongst constitutional scholars and judges—whether
activists or conservatives—has been to treat law as a singular concept and this means that they
have failed adequately to distinguish between ordinary and fundamental law (ie, positive law and
public law).
political controversy, since this too will become another way in which (interpre-
tation of) the Constitution is reduced to a matter of ordinary politics.¹¹⁴
Nevertheless, change attributable to innovation in judicial interpretation
is only one aspect of constitutional development. The others—especially with
respect to their impact on institutional arrangements—are often more profound.
Indeed, viewed from the perspective of general political development, Supreme
Court rulings often appear merely to be giving formal legal recognition to a
series of more basic constitutional changes that have already taken place. One
early illustration of how constitutions change as a consequence of basic political
change is the way that the formation of political parties fundamentally altered
the manner in which the US Constitution worked.¹¹⁵ Another is the way that
the power of the president has grown out of all recognition, without either for-
mal amendment of the constitutional text or authoritative judicial rulings.¹¹⁶
Whittington has identified scores of constitutional changes in the American
system—ranging from establishment of the Federal Reserve System and the crea-
tion of the military draft to the Louisiana Purchase and US membership of the
United Nations—that have been effected without formal legal or constitutional
recognition.¹¹⁷ This perspective, a constitutional approach which draws on the
methods promoted by political scientists in the school of ‘American political
development’,¹¹⁸ highlights some of the ways in which social and political change
permeates understandings of political right and brings about basic changes to the
constitution of the office of American government.
This approach to constitutional understanding has been accorded occasional
recognition in lawyers’ accounts,¹¹⁹ but it has only recently been systematically
¹¹⁴ The extent to which the Supreme Court now regularly divides on what is increasingly per-
ceived to be political lines (cf the Marshall Court) is one significant indication of its failure to keep
the Constitution above the fray of ordinary politics. On which, see only the controversy generated
by Bush v Gore 531 US 98 (2000): EJ Dionne and William Kristol (eds), Bush v Gore: The Court
Cases and the Commentary (Washington, DC: Brookings Institution Press, 2001).
¹¹⁵ Griffin, above n 106, 55: ‘The advent of political parties had such far-reaching implications
for US constitutional government that it is hard to believe the Constitution would have been writ-
ten in the same way had the founders known of them in advance’.
¹¹⁶ See Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill
Clinton (Cambridge, MA: Belknap Press, 1997). Note also Justice Jackson’s insightful observation
inYoungstown Steel & Tube Co v Sawyer 343 US 579, 653 (1952): ‘It is relevant to note the gap that
exists between the President’s paper powers and his real powers. The Constitution does not disclose
the measure of the actual controls wielded by the modern presidential office. That instrument must
be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of
the Government that is. Vast accretions of federal power, eroded from that reserved by the States,
have magnified the scope of presidential activity. Subtle shifts take place in the centers of real
power that do not show on the face of the Constitution’.
¹¹⁷ Keith E Whittington, Constitutional Construction: Divided Powers and Constitutional
Meaning (Cambridge, MA: Harvard University Press, 1999), 12.
¹¹⁸ See Karen Orren and Stephen Skowronek, The Search for American Political Development
(New York: Cambridge University Press, 2004).
¹¹⁹ Most famously in the various aphoristic formulations of Justice Holmes: see, eg, Gompers v
United States 233 US 610: ‘the provisions of the constitution are not mathematical formulas . . . they
examined. Most influential has been the work of Ackerman, who offers new
insights by broadening our understanding of the concept of constitutional
development. Following the work of the American political development
school, Ackerman has argued that ‘the basic unit of analysis should be the con-
stitutional regime, the matrix of relationships and fundamental values that are
usually taken as the constitutional baselines in normal political life’.¹²⁰ Th rough
this relational method, which ‘builds bridges to the political scientists, histori-
ans, and philosophers with whom lawyers should be collaborating’ in seeking
to understand constitutional development,¹²¹ he conceives the Constitution as
‘an evolving historical practice’.¹²² Ackerman’s objective has been to use this
cross-disciplinary approach drawn from the regime perspective to show ‘con-
cretely how it provides new resources for the resolution of classic problems of
legal doctrine’.¹²³
Deploying these methods, Ackerman argues that the US Constitution has
undergone fundamental change at certain critical periods in its history. His
thesis is that during these critical ‘constitutional moments’ the character of the
Constitution has been transformed in ways that are not fully reflected in the
legal edifice of the written Constitution. Under the banner of ‘one constitu-
tion, three regimes’, Ackerman argues that there have been three major consti-
tutional moments: the Founding itself, that is, the period from the framing of
the Constitution and Bill of Rights through to Marbury; the Reconstruction era,
flowing from the Civil War and leading to post-war Amendments; and the New
Deal, born of the Depression and leading to the creation of the welfare state.
Although the Founding is the period in which a revolutionary shift can most
readily be detected,¹²⁴ the novelty of Ackerman’s account lies in specifying the
radical character of the two later eras. His objective is to challenge the notion
that ‘apparently, We the People have never again engaged in the sweeping kind of
critique and creation attempted by the Founding Federalists’.¹²⁵
Most lawyers, Ackerman suggests, treat the Reconstruction amendments
(13th–15th Amendments) as substantively innovative but, being enacted through
the normal methods for constitutional amendment, as procedurally routine.
This, he contends, belies their revolutionary character: the Reconstruction ‘was
an act of constitutional creation no less profound than the Founding itself’.¹²⁶
By nationalizing the protection of individual rights against the possibility of
their curtailment by the states, the amendments radically shifted the balance in
are organic living institutions transplanted from English soil’; Abrams v United States 250 US 630:
‘the theory of the constitution. It is an experiment, as all life is an experiment’.
¹²⁰ Ackerman, above n 29, 59 (emphasis in original).
¹²¹ Ibid, 59: ‘The challenge’, he elaborates, ‘is to grasp the distinctive ways the important
institutions—House, Senate, President, the states, voters, political parties—interacted with one
another in each of the constitutional regimes. Only then can we assess the Supreme Court’s role
within each epoch’.
¹²² Ibid, 35. ¹²³ Ibid, 60. ¹²⁴ Ibid, 41: see above n 29. ¹²⁵ Ibid, 43.
¹²⁶ Ibid, 46.
authority between the nation and the states: ‘We the People of the United States
reconstructed the very process of higher lawmaking to make it plain that the
will of the nation was independent of, and superior to, the will of the states’.¹²⁷
The Reconstruction ‘decisively changed the constitutional problematic in ways
that shifted the balance of constitutional discourse—requiring even those
devoted to states’ rights to recognize that something profoundly important had
happened’.¹²⁸ These were transformative amendments, which are ‘the culminat-
ing expression of a generation’s critique of the status quo—a critique that finally
gains the considered support of a mobilized majority of the American people’.¹²⁹
The third major constitutional moment is the most controversial. Many law-
yers recognize that contemporary constitutional discourse expresses a tension
between nationalist and egalitarian principles of the Reconstruction and the fed-
eralistic principles of the Founding.¹³⁰ But Ackerman claims that although the
Reconstruction had established the priority of national over state citizenship, it
was only during the New Deal period that the claim that the national govern-
ment had limited powers over social and economic development was repudiated.
Only after the New Deal could the federal government ‘operate as a truly national
government, speaking for the People on all matters that sufficiently attracted
the interest of lawmakers in Washington, DC’. In particular it was Roosevelt’s
success ‘in leading Congress and the Supreme Court to affirm the legitimacy of
activist national government, reinforced by the wartime experience of national
solidarity’ that established ‘a new paradigm of Presidential leadership’.¹³¹
While many constitutional lawyers might deny that ‘anything deeply crea-
tive was going on’,¹³² Ackerman argues that the New Deal brought about trans-
formative change. Not only was the unbounded character of national jurisdiction
established, but the significance of the distinction between social and political
equality in constitutional questions was corroded, and the Founders’ ‘principled
hostility to the plebiscitarian Presidency’ decisively rejected.¹³³ New Deal shifts
mean that constitutional tensions do not lie simply between the nationalism of
the Reconstruction and the federalism of the Founding; they must now be trian-
gulated. How can the Founders’ affirmation of limited national government be
reconciled with the New Deal’s legitimation of ongoing bureaucratic interven-
tion in economic and social life? To what extent does the affirmation of activist
government in the twentieth century require a reinterpretation of the meaning of
the Republican Reconstruction?
By making the concept of the regime—the constellation of rules, practices,
institutions, and ideas that make a distinctive identity—the basic unit of ana-
lysis, Ackerman develops a sophisticated basis for explaining the processes of
¹²⁷ Ibid, 81 (emphasis in original). ¹²⁸ Ibid, 82 (emphasis in original).

¹²⁹ Ibid, 92. See further, Akhil Amar, The Bill of Rights: Creation and Reconstruction (New
Haven, CT: Yale University Press, 1998).
¹³⁰ See, eg, Nelson, above n 88. ¹³¹ Ackerman, above n 29, 105, 106.
¹³² Ibid, 42. ¹³³ Ibid, 106.
constitutional change within the frame of constitutional maintenance. By pre-

senting a cross-disciplinary account of constitutional development which draws
on social and economic as well as legal sources of change, he is also able to invoke
‘a more dialectical relationship between the People and the Court’.¹³⁴ Ackerman’s
account of constitutional maintenance/change maps on to the distinctions
between ordinary law and fundamental law, and between the formal and the
material constitution,¹³⁵ in a creative manner. In this sense, his account of consti-
tutional development can be understood as an elaboration of the methods of droit
politique to American constitutionalism.¹³⁶
As an elaboration of those methods, however, Ackerman’s account is not
without its limitations. These flow mainly from a residual legal positivism that
manifests itself in an elaborate dualism which Ackerman believes has shaped
the contours of American constitutionalism. He expresses this in the distinc-
tion between ‘constitutional politics’ and ‘normal politics’, between political
decisions made by the American people and those made by their government.
For Ackerman, normal politics is professional politics, politics undertaken by
politicians within the established constitutional framework. Normal politics is
concerned with contest and decision-making through the institutional processes
of government, and to which the ordinary citizen pays only a casual attention.
Constitutional politics, by contrast, emerges only on extraordinary occasions:
it takes place only on those rare occasions when politicians and citizens act in
concert to bring about basic changes in the constitutional arrangements of the
American state.
Many find Ackerman’s dualist structure—the product of his attempt to recon-
cile the liberal and republican elements in the American system of government—
indefensible. Kramer, for example, claims that it is ‘bizarre and anti-republican:
exactly the sort of ploy aristocrats were always inventing to divest the people
themselves of authority’.¹³⁷ But here I am less concerned with the political than
the methodological issues, and the real problem is that Ackerman’s method for
¹³⁴ Ibid, 161. ¹³⁵ Cf above ch 8, esp 214–216.

¹³⁶ Consider as an illustration Ackerman’s analysis of the significance of n 4 of United States v
Carolene Products 304 US 144, 152 (1938). By incorporating the analysis into a footnote the court
indicated that in 1938, one year after the ‘switch in time that saved nine’, it ‘had more pressing
things to do with its text than muse on the relationship between the New Deal transformation and
the fragments of the Founding and Reconstruction left scattered in its wake’ (Ackerman, above n
29, 119). But though a mere footnote, it takes on an overarching significance: ‘The footnote invites
lawyers to begin, once again, the process of identifying fragments of the older tradition that have
endured the recent constitutional revolution’ (ibid, 121). The footnote (which speculates, inter alia,
over the need for strict scrutiny of legislation directed against ‘discrete and insular minorities’) thus
in effect ‘proposes a new area of life as the centerpiece of egalitarian concern’ (ibid, 128). Here we
see another illustration of the way in which that which counts as marginalia from a formal legal
perspective may from a public law perspective take on a major constitutional significance. Cf
Schmitt, Constitutional Theory, J Seitzer (trans) (Durham, NC: Duke University Press, 2008), 78:
see above ch 8, 216.
¹³⁷ Kramer, above n 10, 197. See also Finn, above n 67, 49–50.
determining such extraordinary moments is thoroughly opaque.¹³⁸ Some crit-
ics have suggested that, especially once the focus shifts to regimes, it becomes
possible to identify more than three basic moments,¹³⁹ and others question
whether alternative explanations of the constitutional moments he identifies have
been adequately addressed.¹⁴⁰ These are crucial questions, which have not been
resolved. Consequently, notwithstanding the importance of Ackerman’s argu-
ment that social, economic, and political changes can coalesce to bring about
basic constitutional change in ways other than through formal constitutional
amendment, the dualist distinction made for the purpose of highlighting this
claim is unconvincing.
Ackerman’s dualism is also reflected in his general argument about the nature
of American constitutionalism. He is right to search for the well-springs of con-
stitutionalism in America’s own distinctive practices, but he goes wrong in iden-
tifying the source of American exceptionalism in its rejection of the European
models of democratic monism (his characterization of the British constitution)
and rights foundationalism (his characterization of the German constitution).
Ackerman claims that the distinctive character of American constitutionalism
is to be found in its embrace of dualism: that, contrary to the British, the dual-
ist ‘sees the discharge of the [rights] preservationist function by the courts as an
essential part of a well-ordered democratic regime’; and, contrary to the German,
‘the judicial protection of rights does depend on a prior democratic affirmation
on the higher lawmaking track’.¹⁴¹
This is, for two main reasons, a less than adept public law analysis. The first is
that nations devise written constitutions in particular historical circumstances
and when doing so they often incorporate specific protections that reflect the
peculiar circumstances of their creation. Given the atrocities of the Nazi dicta-
torship, it is hardly surprising that the founders of the federal republic sought
¹³⁸ Its progressive bias (Founding, Reconstruction, New Deal) is perhaps suggested by his
apparent rejection of the argument that in the years following 11 September 2001, the acquisition
of ‘war’ powers by the president (authorization of cruel interrogation techniques, military tribu-
nals, indefinite detention of alleged non-state combatants, development of a domestic aspect of
commander-in-chief powers, absence of Congressional oversight) are indicative of the creation of a
new constitutional moment. Cf Bruce Ackerman, ‘The Emergency Constitution’ (2004) 113 Yale
Law Journal 1029–1091, esp 1089 (n 150).
¹³⁹ Cf Gordon Wood, ‘The Founders Rule!’ New Republic, 7 November 2005, 32: ‘Many schol-
ars, especially historians, would not agree with Ackerman that the major constitutional changes
occurred only at his three extraordinary moments of transformation. Instead, they say, the changes
have been ongoing, incremental, and often indeliberate. Indeed, ultimately they have made our
Constitution as unwritten as that of Great Britain’; cited in Griffin, above n 106, 60. See also
Stephen M Griffin, American Constitutionalism: From Theory to Politics (Princeton, NJ: Princeton
¹⁴⁰ David AJ Richards, Conscience and the Constitution: History, Theory, and the Law of the
Reconstruction Amendments (Princeton, NJ: Princeton University Press, 1993), 136; Robert
Justin Lipkin, Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American
Constitutionalism (Durham, NC: Duke University Press, 2000), 47–51.
¹⁴¹ Ackerman, above n 29, 10, 13.
to entrench certain basic rights in the post-war constitution.¹⁴² In this respect,

the German experience was no different from the American: ‘both countries
expressly entrenched the features of their new constitutional ordering that were
feared to be in greatest need of bolstering, and at greatest risk of being repealed
through democratic procedures, given their historical circumstances’.¹⁴³ But, as
Fleming goes on to explain, ‘the American Constitution explicitly entrenched
provisions that deeply compromised its founding principles, while the German
Basic Law explicitly entrenched provisions that profoundly expressed its recon-
struction principles’.¹⁴⁴ Entrenchment clauses are often the outcome of a political
accommodation needed to reach agreement rather than the expression of deep
constitutive principles. The second point follows on from this: from a public law
perspective, such clauses are nothing less than the attempt to limit the illimitable.
Constitutional provisions may impose limitations on the range of action of gov-
ernmental institutions and may express the reflective commitments of the archi-
tects of the scheme; what they cannot do is impose a significant limitation on the
determined exercise of the constituent power of the people.
Modern constitutions are, in short, instruments of statecraft and, as is particu-
larly evident in the American tradition, they perform the remarkable function of
maintaining a fi xed, stable, and permanent framework of government while at
the same time accommodating change. These processes of change often appear
to be puzzling and somewhat mysterious. In large part this is because maintain-
ing the Constitution’s authority depends on its being elevated above the ordinary
ways of politics, while maintaining its utility requires that it be capable of silently
adjusting itself to change. In Lippmann’s provocative words, ‘only by violating
the very spirit of the constitution have we been able to preserve the letter of it’.¹⁴⁵
And it is through the workings of these processes of maintenance/change that we
discern the continuing significance of droit politique in modern constitutional
arrangements.
VI. Constitutional Patriotism
The ability of the constitution to maintain stability while accommodating change

brings us back to Madison’s remarkable analysis in The Federalist Papers No 49.
Although ‘the people’ is the ultimate source of constitutional authority, he rec-
ognized that this source of ultimate authority could not be too regularly invoked
¹⁴² This is the so-called ‘eternity clause’, which protects from amendment the clauses relating to
federalism, democracy, and the basic right to human dignity: Grundgesetz, Art 79(3).
¹⁴³ James E Fleming, ‘We the Exceptional American People’ in Barber and George (eds), above
n 42, 91–115, 95.
¹⁴⁴ Ibid (emphasis in original). Fleming’s central point here is that Art V of the US Constitution
had incorporated a prohibition of amendments affecting the African slave trade until 1808.
¹⁴⁵ Walter Lippmann, A Preface to Politics [1913] (New York: BiblioBazaar, 2008), 22.
without undermining the ability of the constitution to perform a vital political
function: that of maintaining an objective framework of legitimate government
that can be elevated above the conduct of ordinary politics. For this to be realized,
government must take on the task of controlling and regulating the ‘passions’ of
the multitude. Constitutionalism requires the constituted authority to perform
the critical task of educating the constituent power in the sacred character of its
constitution. This vital educative responsibility of government with respect to the
constitution offers a further reason why the constitution cannot simply be viewed
as a contract.
This educational task of the constituted authority vis-à-vis the constituent
power has been highlighted by many modern constitutional writers. From the
very inception of the modern construct, Hobbes had acknowledged the neces-
sity of assuming this role. Arguing, notoriously, that ‘the Common-peoples
minds . . . are like clean paper, fit to receive whatsoever by Publique Authority
shall be imprinted in them’,¹⁴⁶ he had claimed that one of the primary tasks of
government must be to instil in the people the habits of obedience. Hobbes sug-
gested that the people ‘ought not to be in love with any form of Government they
see in their neighbour Nations, more than their own, nor . . . to desire change’.¹⁴⁷
The reason is that ‘the prosperity of a People ruled by an Aristocratical, or
Democraticall assembly, commeth not from Aristocracy, nor from Democracy,
but from the Obedience and Concord of the Subjects’.¹⁴⁸ So, continued Hobbes,
just as the Jews maintained a Sabbath in which the law was read and expounded
in order to remind them that their king was God, so too must the people today
be instructed in the necessity of maintaining the institution of the sovereign
power. Substitute ‘the constitution’ for ‘the sovereign power’ and we have spe-
cified the essential task that Madison envisaged for governments with respect to
the constitution.
The power of Hobbes’ argument had been acknowledged implicitly by
Rousseau, who advocated the necessity of promoting a civil religion for the pur-
pose of upholding republican government. There is, Rousseau argued, a ‘purely
civil profession of faith the articles of which it is up to the Sovereign to fix, not
precisely as dogmas of Religion but as sentiments of sociability’ and ‘without
which it is impossible to be either a good Citizen or a loyal subject’.¹⁴⁹ These
dogmas of civil religion ought to be simple and few and they include, along with
the existence of a powerful and provident deity, the happiness of the just and the
punishment of the wicked, ‘the sanctity of the social Contract and the Laws’.¹⁵⁰
Madison had clearly learned this aspect of Rousseau’s lesson in the course of
modifying its application. Recognizing the necessity of representation in mod-
ern republics, Madison noted that the essential difference between ancient and
¹⁴⁶ Thomas Hobbes, above n 23, 233. ¹⁴⁷ Ibid. ¹⁴⁸ Ibid, 233–234.
¹⁴⁹ Rousseau, ‘The Social Contract’ in his The Social Contract and other later political writings V
Gourevitch (trans) (Cambridge: Cambridge University Press, 1997), Bk IV, ch 8, 150.
¹⁵⁰ Ibid, 151.
modern republics lay in the ‘total exclusion of the people in their collective capac-
ity’ from any role in the government.¹⁵¹ It is precisely for this reason that the
promotion of a civil religion assumes a paramount importance.
This task, which Lincoln had referred to as the promotion of a ‘political reli-
gion’ of rational reverence for the Constitution,¹⁵² was one that under the condi-
tions of modern constitutionalism fell to the lawyers to undertake. On this topic,
Tocqueville was particularly eloquent. How, he asked, is the authority of govern-
ment to be maintained when the traditional sources of authority (ie, deference
to ‘natural’ aristocracies and to the customary ways of doing things) dissipate in
a constitutional democracy founded on the ideals of liberty and equality? His
answer—that the influence that lawyers exercise in the government constitutes
‘the most powerful existing security against the excesses of democracy’¹⁵³—
brings together the themes of constitutional patriotism and the emergence of
lawyers as guardians of the constitution.
Tocqueville argued that lawyers were peculiarly suited for these twin tasks
primarily because by training they acquire ‘certain habits of order, a taste for
formalities, and a kind of instinctive regard for the regular connection of ideas,
which naturally render them very hostile to the revolutionary spirit and the unre-
flecting passions of the multitude’.¹⁵⁴ His underlying premiss was that constitu-
tional regimes must of their nature be aristocratic and that within democracies
this aristocratic role could be undertaken only by the lawyers. This is because
lawyers ‘belong to the people by birth and interest, and to the aristocracy by
habit and taste’.¹⁵⁵ In particular, they enjoy ‘the same instinctive love of order and
formalities; and they entertain the same repugnance to the actions of the multi-
tude, and the same secret contempt of the government of the people’.¹⁵⁶ While
lawyers value freedom, Tocqueville noted, they ‘are attached to public order
beyond every other consideration, and the best security of public order is author-
ity’. Consequently, ‘they are less afraid of tyranny than of arbitrary power’.¹⁵⁷ For
these reasons, lawyers are able to take on the role ‘as the connecting link between
the two great classes of society’.¹⁵⁸
This role, Tocqueville argued, is absolutely necessary: ‘Without this admix-
ture of lawyer-like sobriety with the democratic principle, I question whether
democratic institutions could long be maintained; and I cannot believe that a
republic could hope to exist at the present time if the influence of lawyers in pub-
lic business did not increase in proportion to the power of the people’.¹⁵⁹ Lawyers
are the conduits that channel the more grandiose political claims made in the
¹⁵¹ The Federalist Papers, above n 4, No 63, 373.

¹⁵² Abraham Lincoln, ‘On the Perpetuation of our Political Institutions’, Speech of 27 January
1838; cited in Harvey C Mansfield, Jr, America’s Constitutional Soul (Baltimore: The Johns Hopkins
¹⁵³ Alexis de Tocqueville, Democracy in America [1835] Henry Reeve (trans) Daniel J Boorstin
(intro) (New York: Vintage Books, 1990), vol 1, ch 16, 272.
¹⁵⁴ Ibid, 273. ¹⁵⁵ Ibid, 276. ¹⁵⁶ Ibid, 273–274. ¹⁵⁷ Ibid, 275.
¹⁵⁸ Ibid, 276. ¹⁵⁹ Ibid.
name of liberty and equality to the realities of maintaining an ordered system of
constitutional government. They ‘neutralize the vices inherent in popular gov-
ernment’ and they ‘secretly oppose their aristocratic propensities to the nation’s
democratic instincts, their superstitious attachment to what is old to its love of
novelty, their narrow views to its immense designs, and their habitual procrasti-
nation to its ardent impatience’.¹⁶⁰
Lawyers exert a powerful influence over the workings of government in con-
stitutional democracies: in addition to the exercise of judicature, they tend to be
well represented in the legislative assemblies and are often to be found at the head
of the administration. In these constitutional democracies there is ‘scarcely any
political question . . . that is not resolved, sooner or later, into a judicial question’.
This leads to legal ideas, legal language, and a legal temperament permeating
political discourse: ‘The language of the law thus becomes, in some measure, a
vulgar tongue; the spirit of the law, which is produced in the schools and courts of
justice, gradually penetrates beyond their walls into the bosom of society, where
it descends to the lowest classes, so that at last the whole people contract the
habits and the tastes of the judicial magistrate’.¹⁶¹ This is the vital cultural influ-
ence performed by lawyers and legal modes of thinking within constitutional
democracies.
This is the culture that sustains constitutional democracies. Its establishment,
Tocqueville noted, is attributable to the success of ‘a party which is but little
feared and scarcely perceived, which has no badge peculiar to itself, which adapts
itself with great flexibility to the exigencies of the time and accommodates itself
without resistance to all the movements of the social body’. The party ‘extends
over the whole community and penetrates into all the classes which compose it;
it acts upon the country imperceptibly, but finally fashions it to suit its own pur-
poses’.¹⁶² This is the ruling party, the party of constitutionalism; it is the party
of the lawyers. In response to Schmitt’s provocative question, ‘who guards the
Constitution?’,¹⁶³ Tocqueville supplies the answer: the lawyers.
Extending Tocqueville’s analysis, it might be said that lawyers perform a
vital role in accommodating democracy to the discipline of constitutional-
ism. Th rough their work, the Constitution in the American tradition comes
to perform the majestic role that monarchs have performed for pre-modern
governing regimes. When Eisenhower proclaimed that ‘our government does
not make sense unless founded on a deeply felt religious faith—and I don’t care
what it is’, he was expressing the claims of the Constitution as civil religion.¹⁶⁴
The Constitution might take the form of a contract, but once it has estab-
lished its authority and supremacy in the political life of the nation it becomes
transformed into a symbol. Only when treated purely as an instrument for the
¹⁶⁰ Ibid, 278. ¹⁶¹ Ibid, 280. ¹⁶² Ibid.

¹⁶³ Carl Schmitt, Der Hüter der Verfassung (Tübingen: Mohr, 1931).
¹⁶⁴ Cited in Robert N Bellah, ‘Civil Religion in America’ (1967) 96 Daedalus 1–22, 21.
organization of government may it be viewed as a contract; as such, it is to be

measured against the yardsticks of efficiency and effectiveness and, when it
fails those tests, discarded. Th is occurs in many states. But constitutionalism
flourishes only when constitutions take on symbolic as well as instrumental
functions,¹⁶⁵ and for this to be sustained a specific type of political culture
must evolve. Th is culture serves the function of maintaining the authority of
the norms and values of the existing constitutional order.¹⁶⁶ This is what is
meant by constitutional patriotism.
The term ‘constitutional patriotism’ is commonly felt to have been coined in
post-war West Germany, where it appeared as a substitute for a thick, ethnically
homogeneous national identity when, for historic reasons, appeal to the patria
had become impossible to foster.¹⁶⁷ Initially, the term stood as an expression of
a type of civic reason that sought to protect the values of constitutional democ-
racy from those political forces that would undermine it,¹⁶⁸ and it acquired a
broader currency when taken up by Habermas, who argued that, in addition to
its specific application to the German case,¹⁶⁹ constitutional patriotism expressed
a form of post-national identity in which the allegiance of citizens should no lon-
ger be grounded in particular historical, cultural, and geographical sources but
¹⁶⁵ This argument flourished in American circles in the 1930s: see Thurman W Arnold, The
Symbols of Government (New Haven, CT: Yale University Press, 1935); Edward S Corwin ‘The
Constitution as Instrument and Symbol’ (1936) 30 American Political Science Review 1071–1085;
Max Lerner, ‘Constitution and Court as Symbols’ (1937) 46 Yale Law Journal 1290–1319. It resur-
faced in the 1980s: Thomas Grey, ‘The Constitution as Scripture’ (1984) 37 Stanford Law Review
1–25; Sanford Levinson, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988).
¹⁶⁶ This culture of constitutionalism extends to the veneration of flags, anthems, pledges of
allegiance, and such like. See Rudolf Smend, Verfassung und Verfassungsrecht (Munich: Duncker &
Humblot, 1928), 28: ‘Es ist mehr oder weniger der Sinn der Stellung aller Staatshäupter, die Einheit
des Staatvolks zu “repräsentieren” oder zu “verkörpern”, d.h. ein Symbol für sie zu sein, wie es Fahnen,
Wappen, Nationalhymnen in mehr sachlichem under funktionellem Typus sind ’ (‘The position of all
heads of state is more or less to “represent” or “embody” the unity of citizens; that is, to be a sym-
bol for them, such as flags, coats of arms, national anthems in a more substantial and functional
way’). A basic theme of Smend’s work is the role of the constitution as instrument of integration:
see Hans Vorländer (ed), Integration durch Verfassung (Wiesbaden: Westdeutscher Verlag, 2002);
Dieter Grimm, ‘Integration by constitution’ (2005) 3 International Journal of Constitutional Law
193–208.
¹⁶⁷ Dolf Sternberger, Verfassungspatriotismus (Frankfurt am Main: Insel Verlag, 1990). That it
was specifically tailored for the divided German nation is evident in Sternberger’s argument (at 7)
that ‘nun erhebt sich die Frage . . . worauf sich denn der Patriotismus im deutschen Fall beziehen solle
oder beziehen könne’ (‘now the question arises as to what patriotism relates to, or can relate to, in
the German case’).
¹⁶⁸ The concept therefore had roots in the concept of militant democracy, on which, see Karl
Loewenstein, ‘Militant Democracy and Fundamental Rights’ (1937) 31 American Political Science
Review 417–432 (Pt I), 638–658 (Pt II).
¹⁶⁹ See Jürgen Habermas, ‘A Kind of Settlement of Damages: the Apologetic Tendencies
in German History Writing’ in Forever in the Shadow of Hitler?: Original documents of the
Historikerstreit, the controversy concerning the singularity of the Holocaust James Knowlton and
Truett Cates (trans) (Atlantic Highlands, NJ: Humanities Press, 1993), 30–44, 43: ‘The uncon-
ditional opening of the Federal republic to the political culture of the West is the greatest achieve-
ment of the postwar period’.
in adherence to the universal legal, moral, and political values of constitutional-
ism.¹⁷⁰ But this German and latterly post-national construction should not dis-
tract from the point that building allegiance not only to the values but also to the
authority of the constitution is a general and vital aspect of the modern practices
of constitutionalism.
VII. Reflexive Constitutionalism
It is widely accepted today that ‘the constitution is a contract among the citi-
zens establishing the institutions of government’.¹⁷¹ But this characterization
leaves most of the fundamental questions concerning the modern concept of
the constitution unresolved. The contractual claim overlooks the paradoxical
character of the founding: that, since ‘the people’ that by contract authorize the
constitution must exist prior to that document, there must also already exist a
procedure for determining who speaks for the people, and this means that there
must already be a constitution in existence. By requiring unconditional alle-
giance to the constitution, the contract seeks to render illegitimate the type of
unconstitutional political action that was required to establish the constitution
in the first place. And once the constitution is treated as being the authoritative
instrument of government, it becomes impossible to offer a coherent explan-
ation of the ways in which—outwith the formal processes of amendment or
judicial interpretation—basic constitutional change takes place. If the nature of
the modern concept of constitution is to be grasped, we must move beyond the
contractual metaphor.
The answer that has been offered here suggests that a clean break cannot be
effected between the ancient and modern ideas of the constitution, and that the
modern attempt to focus purely on the constitution of the office of government
provides no substitute for reflection on the constitution of the state. This mod-
ernizing constitutional movement has evolved in conjunction with the displace-
ment of the ancient idea of the fundamental law by positive law, a process that
reaches its apotheosis in the acceptance of the notion that the judicature—the
authoritative interpreter of positive law—is the ultimate guardian of the meaning
of the constitution. Only by restoring a public law perspective, by viewing the
¹⁷⁰ See Jürgen Habermas, The Inclusion of the Other Ciaran Cronin and Pablo de Greiff
(trans) (Cambridge: Polity, 1999); Jürgen Habermas, The Postnational Constellation Max
Pensky (trans) (Cambridge: Polity, 2001). For discussion, see Jan-Werner Müller, Constitutional
Patriotism (Princeton, NJ: Princeton University Press, 2007); Mattias Kumm, ‘The Idea of Thick
Constitutional Patriotism and its Implications for the Role and Structure of European Legal
History’ (2005) 6 German Law Journal 319–354; Patchen Markell, ‘Making Affect Safe for
Democracy? On “Constitutional Patriotism” ’ (2000) 28 Political Theory 38–63; Charles Turner,
‘Jürgen Habermas: European or German?’ (2004) 3 European Journal of Political Theory 293–314.
¹⁷¹ Dennis C Mueller, ‘Constitutional Rights’ (1991) 7 Journal of Law, Economics, and
Organization 313–333, 314.
VII. Reflexive Constitutionalism 311
constitution as an exercise in statecraft that functions according to the precepts

of droit politique, will it be possible adequately to address the fundamental issues.
Modern constitutions remain of central importance, but they can now be set
in a more appropriate frame. By placing modern constitutions within the frame of
droit politique, the critical dynamic between the constitution (the text) and consti-
tutionality (the process whereby the text comes to play an increasingly important
role in the regulation of the political sphere) is revealed. This dynamic—between
government and state, formal constitution and material constitution, positive law
and fundamental law—exposes the workings of the precepts of political right.
This perspective enables us, for example, to address the paradox of the founding,
by treating the founding not simply as an historical event but as a reflexive under-
taking through which ‘the people’ come after the fact (and to the extent that they
do) to embrace the norms enunciated in constitutional documents. It enables us
to acknowledge (from the internal point of view) the authority of the constitu-
tion, while simultaneously recognizing (from an external point of view) its quali-
fied and conditional character. It enables us to see the remarkable role that the
modern constitution performs in maintaining its fi xity while accommodating
change. It enables us to see that the constitution is not only an instrument that
establishes the office of government, but performs a powerful symbolic role in
the shaping of constitutional, political, and national identity. And it reveals how
the positivization of constitutions has resulted in the practices of political right
becoming concealed from view behind a façade of positive law. Only by opening
up a public law perspective does it become possible to specify with precision the
powerful modernizing process that is reflexive constitutionalism.
11
Rechtsstaat, Rule of Law, l’Etat de droit
I. The Ambiguous Character of the Rule of Law
Modern constitutional development has been driven by a dynamic between

power and liberty. Since the powers of government in the modern era are exten-
sive, the key political value of liberty can be maintained only by ensuring that
these powers are confined, channelled, and checked. This is one of the basic func-
tions of modern constitutions. Written constitutions exist to maintain a balance
between the conferral of powers on government and the preservation of the liber-
ties of the individual.
For this critical function of modern constitutions to be realized, three basic
principles must be accepted. The first is that the constitution be recognized as the
medium through which all governmental power is exercised; this is the principle
of constitutional supremacy. The second principle is that the law of the constitu-
tion is acknowledged as the fundamental law of the land. And the third is that
the judiciary, through judicial review, acts as the ultimate guardian of the con-
stitution. Despite various controversies over their application, these are widely
accepted as basic principles of modern constitutionalism. But once adopted, a
critical question presents itself: can it now be said that the law not only guides
and constrains but also rules? This is the idea animating the English expression,
‘the rule of law’. Is the rule of law an essential fourth principle—or, indeed, the
overarching meta-principle—of modern constitutionalism? Or is this phrase
simply a rhetorical formulation with no practical consequences?
There are good reasons for believing that the rule of law is merely a slogan.
However laudable its underlying intentions, the goal of achieving a ‘govern-
ment of laws and not of men’ remains an impossibility. One compelling reason
derives from the fact that law in the modern era is universally acknowledged to
be a human creation. It is not possible to conceive that law could be placed above
human will: it can never be placed above a ‘government of men’.¹ A second rea-
son is that laws cannot be said to rule, for the obvious reason that ruling involves
action, and laws, in themselves, do not act. The rule of law, it would appear, is
¹ As noted in ch 5 above, 132, Rousseau regarded the problem of realizing the rule of law as
being analogous to that of squaring the circle in geometry: unless solved, he stated, ‘you may be
sure that whenever you believe you have made the laws rule, it will be men who will be ruling’.
I. The Ambiguous Character of the Rule of Law 313
mere rhetoric, a conviction which is reinforced by its intrinsic ambiguity: the ubi-
quity of the expression ‘the rule of law’ is matched only by the multiplicity of its
meanings.²
This intrinsic ambiguity is evident when one looks at the influence of the
expression across a range of legal traditions. The English idea of ‘the rule of law’
finds its correlative formulations in continental European concepts of Rechtsstaat,
l’Etat de droit, Stato di diritto, Estado de derecho, and so on. But it is evident that
these phrases have a different orientation, not least because in them the concept
of the state forms its core. These continental formulations highlight a specific
conundrum: although the state, as the source of law, is competent to define its
own competences, the concept of ‘the state of law’ means that the state acts only
by means of law, and is therefore also subject to law. The state that is the source of
law is also, apparently, the subject of law.
This conceptual puzzle is not the only difficulty presented by continental
European formulations. Formulations such as Rechtsstaat and l’Etat de droit have
emerged from different constitutional traditions with different political histo-
ries. Despite the similarity of their formulations, these expressions are not direct
equivalents.³ But even if we stick with the original German notion, the Rechtsstaat
presents itself as no less an ambiguous expression than that of the rule of law. The
doctrine has been used to justify a wide variety of governing regimes,⁴ and it has
been estimated that over 140 legal concepts operating in the German legal system
are claimed to be aspects of the Rechtsstaatprinzip.⁵ Schmitt noted that the term
² JN Shklar, ‘Political Theory and the Rule of Law’ in Allan C Hutchinson and Patrick Monahan
(eds), The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 1–16, 1: ‘It would not be diffi-
cult to show that the phrase “the Rule of Law” has become meaningless thanks to ideological abuse
and general over-use. It may well have become just another one of those self-congratulatory rhetori-
cal devices that grace the public utterances of Anglo-American politicians’.
³ Cf Ernst-Wolfgang Böckenförde, ‘The Origin and Development of the Concept of the
Rechtsstaat’ in his State, Society and Liberty: Studies in Political Theory and Constitutional Law
JA Underwood (trans) (New York: Berg, 1991), 47–70, 48: ‘Rechtsstaat is a term peculiar to the
German-speaking world; it has no equivalent in any other language. . . . The ‘rule of law’ in Anglo-
Saxon law is not in substance a parallel concept, and French legal terminology has no comparable
words or concepts whatever’.
⁴ This even includes the legal ordering of the Third Reich: see, eg, Ulrich Schellenberg, ‘Die
Rechtsstaatskritik: Vom liberalen zum nationalen und nationalsozialistchen Rechtsstaat’ in
Ernst-Wolfgang Böckenförde (ed), Staatsrecht und Staatsrechtslehre im Dritten Reich (Heidelberg:
CF Müller, 1985), 7188; Carl Schmitt, ‘Der Rechtsstaat’ [1935] in his Staat, Großraum, Nomos:
Arbeiten aus den Jahren 1916–1969 (Berlin: Duncker & Humblot, 1995), 108–120.
⁵ Katharina Sobota, Das Prinzip Rechtsstaat (Tübingen: Mohr Siebeck, 1997), 471–526, who
identifies 142 individual characteristics of the rule of law, including: legal bindingness of the con-
stitution (Rechtsverbindlichkeit der Verfassung: §12), validity of fundamental rights independent of
majority decisions (Geltung der Fundamentalrechtsnormen unabhängig von Mehrheitsentscheidungen:
§15), prohibition of arbitrariness (Willkürverbot: §38), rationality (Rationalität: §41), divi-
sion of powers (Gewaltenteilung: §48), local self-government (Kommunale Selbstverwaltung:
§53), legality (Gesetzlichkeit: §55), legal certainty, (Bestimmtheitsprinzip: §64), accountability
(Verantwortlichkeit: §76), non-retrospectivity (Rückwirkungsverbote: §96), judicial independence
(Unabhängigkeit des Richters: §102), effective rights protection (Eff ektiver Rechtsschutz: §125), and
proportionality (Verhältnismäßigkeit: §138).
314 Rechtsstaat, Rule of Law, l’Etat de droit
‘Rechtsstaat’ ‘can mean as many different things as the word “law” [Recht] itself
and, moreover, just as many different things as the organizations connoted by the
term “state” [Staat]’. There is ‘a feudal, an estate-based, a bourgeois, a national,
a social, and further a natural-law, a rational-law, and a historical-legal form of
Rechtsstaat’. Advocates thus ‘claim the word for their own purposes, in order to
denounce the opponent as the enemy of the Rechtsstaat’. As used in constitutional
theory, Schmitt argued that the concept of the Rechtsstaat boils down to the mere
claim that ‘Law should above all be what I and my friends value’.⁶
In such circumstances, precision in public law might demand abandonment of
these concepts altogether in favour of a less-charged investigation into the nature
of the relationship between state, constitution, governing, and law. The difficulty
is that the ubiquity of the expression ‘rule of law’ demands that it be examined
in order to reveal its underlying values and to assess the claim that it is a founda-
tional element of the discipline. In this chapter, the origins of these expressions
in English, German, and French thought will be examined. My argument will be
that although a coherent formulation of the general concept can be devised, this
formulation is entirely unworkable in practice. The rule of law therefore cannot
be conceived as a foundational concept in public law. So far as it has any use, it
must be deployed with precision, especially because the fact that it is unrealizable
in practice renders it peculiarly susceptible to being used for ideological purposes.
The concept has value only for its aspirational qualities. Nevertheless, the extent
to which the directing idea can be realized is an essentially political task.
II. Origins
Our initial assumption should be that the rule of law refers to some common phe-
nomenon or aspiration.⁷ Whatever its precise meaning, the concept we are seek-
ing to fi x on is a modern phenomenon. It presents itself for consideration only
with the birth of sovereignty. The concept of the rule of law emerges as a product
of the formation of the modern state.⁸ Despite having a common source, the
way the rule of law presents itself as meta-legal principle varies according to the
⁶ Carl Schmitt, Legality and Legitimacy [1932] Jeff rey Seitzer (trans) (Durham, NC: Duke
⁷ See, eg, D Neil MacCormick, ‘Der Rechtsstaat und die rule of law’ (1984) 39 Juristenzeitung
65, 67: ‘Es fragt sich also, ob wir wirklich zweierlei Grundprinzipien benötigen—die einen für den
Rechtsstaat und die anderen für die rule of law. Oder genügen die gleichen Grundprinzipien für beide
Begriff e? Meine Meinung ist, daß beide Begriff e durch die gleichen Grundprinzipien konstituiert
sind ’ (‘The question therefore is whether we really need two types of basic principles—one for the
Rechtsstaat and the other for the rule of law. Or do the same basic principles suffice for both con-
cepts? In my opinion, both concepts are constituted through the same basic principles’).
⁸ See Blandine Kriegel, The State and the Rule of Law Marc A Le Pain and Jeff rey C Cohen
(trans) (Princeton, NJ: Princeton University Press, 1995), 42: ‘Human liberty arises from the mod-
ern and antidominial conception of power, and it is tied to the notion of a social contract and to a
conception of rights as law. Rights are guaranteed by the form of the state’.
II. Origins 315
different histories, cultures, and practices of European governing regimes. The
first task in seeking to understand the concept must therefore be to examine some
of these histories. I do so by focusing on the English, German, and French cases.
The English concept of the Rule of Law

The concept of the rule of law was introduced into English constitutional dis-
course only in the latter half of the nineteenth century. First formulated by
Hearn,⁹ it achieved its classic (though rather imprecise) formulation by Dicey.
In his Law of the Constitution of 1885, Dicey identified three guiding princi-
ples which underpinned the British constitution: the legislative sovereignty of
Parliament, the universal rule throughout the constitution of ordinary law, and
the role that conventions play in the ordering of the constitution.¹⁰ Liberty, he
argued, is preserved by maintaining the balance that is already implicit in these
guiding principles.
Although the doctrine of parliamentary sovereignty seems to be ‘an instrument
well adapted for the establishment of democratic despotism’,¹¹ Dicey claimed that
once the way that sovereignty interlocks with the principle of the rule of law is
grasped, the doctrine is seen to promote liberty. His point can be illustrated from
both angles. He maintained that ‘the sovereignty of Parliament, as contrasted
with other forms of sovereign power, favours the supremacy of law’, and the rea-
son for this is that ‘the commands of Parliament . . . can be uttered only through
the combined actions of its three constituent parts’.¹² Here, he was indicating
that the necessity of achieving an accommodation between monarch, lords, and
commons establishes a series of internal balances and restraints. Similarly, Dicey
contended that the rule of law upholds the principle of parliamentary sovereignty
because the ‘rigidity of the law constantly hampers . . . the action of the executive,
and . . . the government can escape only by obtaining from Parliament the discre-
tionary authority which is denied to the Crown by the law of the land’.¹³
Dicey’s concept of the rule of law is closely tied to the idea that, acting in part-
nership, Parliament and the courts are the true sources of law within the British
constitution.¹⁴ In this interpretation, the rule of law presents itself as an adjunct
⁹ WE Hearn, The Government of England: Its Structure and Development (London: Longmans,
1867), 89–91.
¹⁰ AV Dicey, Introduction to the Study of the Law of the Constitution (1885) (London: Macmillan,
8th edn, 1915), 34.
¹¹ AV Dicey, Lectures on the Relation between Law and Public Opinion in England during the
Nineteenth Century (London: Macmillan, 1905), 305.
¹² Dicey, above n 10, 402. ¹³ Ibid, 406.
¹⁴ From this relationship, the peculiarly British understanding of the idea of the separation of
powers can also be derived: see Duport Steels v Sirs [1980] 1 All ER 529, 541 (per Lord Diplock): ‘it
cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly
based on the separation of powers: Parliament makes the laws, the judiciary interprets them’.
to the principle of parliamentary sovereignty, so becoming an expression of the

idea of ‘the legislative state’.¹⁵
But Dicey’s formulation of the concept is not without its ambiguities. He
suggested that the rule of law had three main meanings. First, it meant the
‘absolute supremacy . . . of regular law as opposed to the influence of arbitrary
power’. Secondly, it meant equality before the law, or ‘the equal subjection of
all classes to the ordinary law of the land administered by the ordinary Law
Courts’. Finally, the concept was a formula for expressing the fact that in the
English system ‘the principles of private law have . . . been by the action of the
Courts and Parliament so extended as to determine the position of the Crown
and of its servants’. That is, ‘the constitution is the result of the ordinary law of
the land’ and that ‘the law of the constitution . . . [is] not the source but the con-
sequence of the rights of individuals’.¹⁶ The first meaning appeals to the idea of
law as a set of general rules of conduct and the second invokes the principle of
universality; these express a general liberal orientation. But the third meaning
is culturally specific. By linking the concept to the particularities of English
constitutional history, Dicey suggests that the rule of law is a product of the
common law tradition.
Dicey explicated the rule of law not so much as a universal aspiration but as the
distinctive achievement of a particular—perhaps unique—constitutional tradi-
tion. It was for this reason that Shklar maintained that in Dicey’s work the con-
cept was ‘both trivialized as the peculiar patrimony of one and only one national
order, and formalized, by the insistence that only one set of inherited procedures
and court practices could sustain it’.¹⁷ Dicey’s formulation of the concept of the
rule of law amounted to an ‘outburst of Anglo-Saxon parochialism’, which tied
the concept directly to the common law’s achievement in rejecting the distinc-
tion between public law and private law.¹⁸
¹⁵ Dicey’s concept of the rule of law can thus be understood to be very close to Schmitt’s con-
cept of ‘a parliamentary legislative state’ (ein parlamentarischer Gesetzgebungsstaat) in which ‘the
lawmaker, and the legislative process under its guidance, is the final guardian of all law, ultimate
guarantor of the existing order, conclusive source of all legality, and the last security and protec-
tion against injustice’: Schmitt, above n 6, 19. Schmitt argues, however, that although the ‘legisla-
tive state’ could present itself as a Rechtsstaat, ‘the word Rechtsstaat should not be used here’: ibid,
14. Schmitt’s argument is given added force by Dicey’s lament in the last edition of Law of the
Constitution in 1915 that ‘faith in parliamentary government has suffered an extraordinary decline’
and that the ‘ancient veneration for the rule of law has in England suffered during the last thirty
years a marked decline’: Dicey, above n 10, xcii, xxxviii. Cf Schmitt, above, 23–24 who argues that
when the domestic situation is normal and confidence in the legislative organ remains unshaken
then faith in legality is not placed in issue, but that in a democracy the concept of law must, on
this understanding, become ‘the will of a transient majority of the voting citizenry’. Dicey himself
expressed a concern about majoritarianism (what he called ‘class legislation’) and believed that the
balance in the British constitution could be maintained by the British practice of ‘democracy tem-
pered by snobbishness’: Dicey, above n 11, 57. On Dicey, see further, Martin Loughlin, Public Law
and Political Theory (Oxford: Clarendon Press, 1992), ch 7; PP Craig, Public Law and Democracy in
the United Kingdom and the United States of America (Oxford: Clarendon Press, 1990), ch 1.
¹⁶ Dicey, above n 10, 198–199. ¹⁷ Shklar, above n 2, 6. ¹⁸ Ibid, 5.
II. Origins 317
Dicey’s concept was tied directly to the particularities of English constitu-
tional history. By claiming that the English possess a judge-made constitution,¹⁹
he also promoted a highly conservative interpretation of constitutional history.
He believed that true rights are not to be found in paper constitutions. Rights
contained in written constitutions are ‘something extraneous to and independent
of the ordinary course of the law’ and, since they owe their status to that con-
stitution, they can be suspended.²⁰ In the English tradition, by contrast, rights
derive from the generalization of precedents expressed in the ordinary law of the
land. The great value of such rights is that they ‘can hardly be destroyed without
a thorough revolution in the institutions and manners of the nation’.²¹ In this
understanding, the rule of law in the English tradition represented for Dicey not
the rule of the legislative state but the rule of judicature.²²
Dicey’s concept of the rule of law is rich, intricate, and ambiguous. One aspect
of it bolsters the doctrine of parliamentary sovereignty and—but for the internal
balances in the parliamentary system—is authoritarian. Although the rigidity
of the law restrains the exercise of governmental power, this aspect expresses the
principle of rule by law. A second aspect of Dicey’s concept, extolling the princi-
ple of equality before the law, is an expression of classical liberalism, which does
not take us beyond the principle of rule by law. Yet a third aspect draws on the
peculiarities of the common law tradition working through an ancient idea of a
constitution; this expresses the ‘rule of reason’²³ and draws on the need to place
trust in the judiciary as guardians of the implicit values of a distinctive constitu-
tional tradition.²⁴
The German concept of Rechtsstaat

The analogous German concept of Rechtsstaat emerged earlier than the English
expression, in relation to different governmental circumstances. The term came
into use during the first half of the nineteenth century. Just as Dicey’s elabor-
ation of the rule of law revealed tensions between liberalism and conservatism
in the British constitution, so the Rechtsstaat concept appeared in the writing
¹⁹ Dicey, above n 10, 192–193: ‘There is in the English constitution an absence of those declara-
tions of rights so dear to foreign constitutionalists. Such principles, moreover, as you can discover
in the English constitution are, like all maxims established by judicial legislation, mere generalisa-
tions drawn either from the decisions or dicta of judges, or from statutes which, being passed to
meet specific grievances, bear a close resemblance to judicial decisions, and are in effect judgments
pronounced by the High Court of Parliament. . . . [I]n England, . . . the constitution itself is based
on legal decisions’.
²⁰ Ibid, 196. ²¹ Ibid, 197.
²² See Ernest Barker, ‘The Rule of Law’ (1914) 1(2) Political Quarterly 117–140.
²³ See Aristotle, The Nicomachean Ethics [c334–323 BC] JAK Thomson (trans) (Harmond-
sworth: Penguin, rev edn, 1976), Bk V.
²⁴ See Martin Loughlin, Sword and Scales: An Examination of the Relationship between Law and
Politics (Oxford: Hart Publishing, 2000), ch 5.
of German jurists as an attempt to reconcile modern claims of liberty with trad-

itional authoritarian governing arrangements.
Initially, the term Rechtsstaat was used as ‘a descriptive category applicable
to all modern states which used general laws to harmonize the sovereign con-
centration of political power with liberal policy’.²⁵ This suggests that the term
meant nothing more than rule by law. But ambiguities in the use of the term
were evident from the outset, with the reactionary Adam Müller and the liberal
Carl Theodor Welcker each using the expression (in 1808 and 1813 respectively)
for the purpose of justifying the reconstruction of government after pressures to
modernize. While diverging in their political objectives, they shared the belief
that Rechtsstaat was the ‘state of reason’.²⁶ This general expression was elevated
to the status of doctrine only through the systematic work later undertaken by
Robert von Mohl.²⁷
Mohl’s account of Rechtsstaat contained three main elements. First, it rejected
the idea that political order is divinely ordained: governmental order was the
product of earthly aims of free, equal, and rational individuals. Secondly, the
aim of a governing order must be directed towards the promotion of the liberty,
security, and property of the person, though this general aim also encompassed
those policing functions that provided a platform of regulation and protection.
Thirdly, that the state should be rationally organized, a claim incorporating the
principles of responsible government, judicial independence, parliamentary rep-
resentation, rule by means of law, and recognition of basic civil liberties.²⁸ The
lineage of Mohl’s account can be traced back to Kant’s attempt to reconcile the
establishment of order with the maintenance of freedom, particularly since, in
Kant’s theory, law was the medium through which reconciliation was achieved.²⁹
In Mohl’s account, Rechtsstaat stood in direct contrast to both the absolutist state
and the police state (Polizeistaat).
This Kantian explanation of both Mohl’s particular argument and the general
approach to the concept of the Rechtsstaat in the early-nineteenth century is nei-
ther straightforward nor uncontroversial. One difficulty with it is that Mohl was
²⁵ Leonard Krieger, The German Idea of Freedom: History of a Political Tradition (Chicago:
University of Chicago Press, 1957), 253.
²⁶ Adam Heinrich Müller, Elemente der Staatskunst (Berlin: JD Sander, 1809), vol 1, 1–35; Carl
Theodor Welcker, Die letzte Gründe von Recht, Staat, und Strafe (Gießen: Heyer, 1813), 25; dis-
cussed in Krieger, above n 25, 253–256; Michael Stolleis, Public Law in Germany, 1800–1914
(New York: Berghahn, 2001), 103–106, 131–132.
²⁷ Robert von Mohl, Das Staatsrecht des Königsreichs Württemberg (Tübingen: Laupp, 1829);
Robert von Mohl, Die Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates [1832] (Tübingen:
Laupp, 3rd edn, 1866); discussed in Sobota, above n 5, 306–319.
²⁸ See the synthesis of Böckenförde, above n 3, 49–50.
²⁹ Immanuel Kant, Metaphysical Elements of Justice [1797] (Part I of the Metaphysics of Morals;
known as the Rechtslehre) John Ladd (trans) (Indianapolis: Hackett, 1999), §45 (118): ‘A state (civi-
tas) is a union of a group of persons under the laws of justice’. Stolleis has noted that already in the
1790s Kant and his followers had been designated as ‘ die Schule der Rechts-Staats-Lehre’: Michael
Stolleis, ‘Rechtsstaat’ in Adalbert Erler and Ekkehard Kaufmann (eds), Handwörterbuch zur deut-
schen Rechtsgeschichte (Berlin: Schmidt, 1990), vol 4, 367–375, 375.
II. Origins 319
no diligent disciple of Kant. In place of Kantian ‘negative freedom’, for instance,
Mohl promoted the idea of freedom through the state: the law-bound state was
designed not for the purpose of specifying precise limits to governmental action
but to measure such action against the general objective of promoting an individ-
ual’s complete development.³⁰ A second complicating factor derives from Kant’s
rejection of the right of resistance: in German state practice, adherence to the
principle of legality became the price rulers paid for the maintenance of authori-
tarian systems of government.³¹ Kantian formulations incorporated significant
conservative aspects and under its influence early elaborations of the Rechtsstaat
concept could not be assumed to rest on liberal foundations.³²
Tensions between authoritarianism and liberalism in the early formulations
of the concept came to a head in the 1848 revolution. The Paulskirche national
assembly sought to establish the protection of basic rights as the foundational
constitutional principle,³³ treating the Rechtsstaat concept as a fundamental prin-
ciple of liberal constitutionalism. With the failure of that revolutionary move-
ment the liberal version was defeated and in the post-1848 period the concept
emerged in German regimes as an ambiguous compromise between liberalism
and monarchical authoritarianism. Since it was only during the latter-half of the
nineteenth century that the doctrine of Rechtsstaat was formalized, these meth-
odological ambiguities remained submerged.
³⁰ In Polizeiwissenschaft, above n 27, von Mohl defines the goal of the Rechtsstaat as ‘the arrange-
ment of the common life of a population such that each member is supported and encouraged in
the most free and general exercise and use of his complete powers’. Cited in Stolleis, above n 26,
246 (n 194).
³¹ Stolleis, above n 26. Referring to the rule of law (die Herrschaft des Gesetzes) as a legislative
state (Gesetzgebungstaat), Schmitt, above n 6, (at 14), states that the law-maker ‘is the final guard-
ian of all law, ultimate guarantor of the existing order, conclusive source of all legality, and the last
security and protection against injustice. Misuse of the legislative power and of the lawmaking
process must remain out of consideration in practical terms, because otherwise a differently consti-
tuted state form . . . would become immediately necessary. The pre-existing and presumed congru-
ence and harmony of law and statute, justice and legality, substance and process dominated every
detail of the legal thinking of the legislative state. Only through the acceptance of these pairings
was it possible to subordinate oneself to the rule of law precisely in the name of freedom, remove the
right of resistance from the catalogue of liberty rights, and grant to the state the previously noted
unconditional priority’.
³² See, eg, the work of Friedrich Julius Stahl, who understood the Rechtsstaat as the product of
a state comprising the union of a people under a sovereign authority and as an objective expres-
sion of that national unity. In Stahl’s work the term Rechtsstaat defined only the formal means by
which the political ends of the state were realized: Friedrich Julius Stahl, Die Philosophie des Rechts
nach geschichtlicher Ansicht [1833–1837] (Tübingen: Mohr, 1878), vol 2, 137. Stahl also main-
tained that that expression of national unity is best expressed through the monarchy: see Stahl,
Das monarchische Prinzip (Heidelberg: Mohr, 1845), 34: ‘the monarchical principle is the founda-
tion of German public law and of the German art of the state’ (‘Das monarchische Prinzip . . . is das
Fundament deutschen Staatsrechts und deutscher Staatsweisheit’). See further, Sobota, above n 5,
319–337; Christoph Schönberger, ‘État de droit et État conservateur: Friedrich Julius Stahl’ in
Olivier Jouanjan (ed), Figures de l’État de droit (Strasbourg : Presses Universitaires de Strasbourg,
2001), 177–192.
³³ See Krieger, above n 25, 329–340.
These ambiguities inhered in the concept of the state itself. In Bähr’s influen-
tial exposition, for example, the state was treated as an organic association, and
its law-bounded character formulated by way of an evolving functional differ-
entiation into legislative, judicial, and administrative activities.³⁴ With respect
to these functions—especially the growing administrative responsibilities of
government³⁵—spheres of governmental action were identified as constituted by
rules and subject to legal controls.
During the latter-half of the nineteenth century, however, this organic approach
was superseded by the emerging legal positivism of Gerber and Laband.³⁶ For
these jurists, the state was conceived as a juristic person which embodied sov-
ereignty, an argument with radical implications. The Kantian liberal approach
whereby individuals are bearers of rights by virtue of their humanity and which
therefore impose specific limits on the authority of the state had, as a logical
necessity, to be rejected. Within the frame of this positivist jurisprudence, rights
are created only through objective law: they therefore are entirely conventional
concepts. Once this manoeuvre was set in place, the concept of Rechtsstaat itself
could be subsumed in the concept of Staatsrecht.
This development led, in one sense, to the formulation of the first purely jurid-
ical concept of Rechtsstaat. But in this juridical understanding, rights could not be
foundational. Rights do not have natural or pre-state existence, and neither do they
have constitutive status; rights are created as a product of legislative action. The con-
cept of Rechtsstaat could then be conceived solely in aspirational terms. Jhering was
one of the first clearly to identify the consequential difficulties with respect to the
relationship between state and law. Since there is no power above the state, how, he
asked, could state power be subordinated to a given entity?³⁷ Jhering’s own answer
to that question was supplied by the concept of self-limitation (Selbstbeschränkung):
it was in the state’s interest to promote its self-limitation through self-binding to
legal norms. And it was this self-limitation that Jellinek later sought to resolve in his
two-sided theory of the state, in which a formally sovereign entity was obliged, for
the purpose of maintaining its authority, to rely on precepts that emerged from a
historical tradition and therefore could only be gradually modified.³⁸
³⁴ Otto Bähr, Der Rechtsstaat [1864] (Aalen: Scientia Verlag, 1961); see discussion in Pietro
Costa, ‘The Rule of Law: A Historical Introduction’ in Pietro Costa and Danilo Zolo (eds), The Rule
of Law: History, Theory and Criticism (Dordrecht: Springer, 2007), 73–149, 93–95. Bähr’s organic
argument was founded on the idea of Genossenschaft pioneered by Gierke; see, eg, Otto Gierke,
Political Theories of the Middle Age FW Maitland (trans) (Cambridge: Cambridge University Press,
1988) (a section of Gierke’s Das Deutsche Genossenschaftsrecht).
³⁵ See esp Otto Mayer, Deutsches Verwaltungsrecht (Leipzig: Dunker & Humblot, 1895): ‘Der
Rechtsstaat ist der Staat des wohlgeordneten Verwaltungsrecht’ (The Rechtsstaat is the state with well-
ordered administrative law), cited in Stolleis, above n 29, 372.
³⁶ See above ch 7, 191–192.
³⁷ Rudolf von Jhering, The Struggle for Law [1872] John J Lalor (trans) (Chicago: Callaghan &
Co, 1915), esp 21–22.
³⁸ Georg Jellinek, Allgemeine Staatslehre (Berlin: Springer, 3rd edn, 1922), 476–484. See above
ch 7, 192–193; ch 8, 217–218.
II. Origins 321
The predominance of legal positivism in late-nineteenth-century public
law thought meant that the Rechtsstaat concept emerged in twentieth-century
German jurisprudence as a purely formal principle. Since there could be no legal
limitation on the legislative power, the concept denoted only the formalities of
the relations between law, government, and individual in which ‘the adminis-
tration may not interfere in the realm of individual liberty either against a law
(contra legem) or without a legal foundation (praetor, ultra legem)’.³⁹ Here, the
concept was no longer a constitutional principle in any strict sense; that is, it lost
its connection with foundational aspects of state-building. The idea of ‘the rule
of law’ implicit in the concept of Rechtsstaat is therefore limited to that of ‘rule
by law’.
After the debasement of the concept by the National Socialist regime,⁴⁰
the positivist conception of the Rechtsstaat became, after 1945, the subject of
renewed and often contentious discussion. The context was the framing of a
new constitution for the Federal Republic of Germany and the establishment
of a Federal Constitutional Court as the guardian of that constitution. Since
the court maintained that the constitution embodied a regime of basic values
(Wertgrundlage) of social life,⁴¹ a tension was established between formal legal
liberal protections (epitomized by the positivist Rechtsstaat) and the social values
implicit in the system of constitutional democracy (epitomized by the post-war
concept of the Sozialstaat).⁴² This tension manifested itself juristically between
laws and measures, between the concept of law as a set of general rules, and law
as a series of measures (Maßnahmegesetze) that regulate social and economic
life.⁴³ This tension was replicated at the level of constitutional discourse in the
distinction between the formal and material concepts of Rechtsstaat.⁴⁴ In such
circumstances—in which the concept is given various (often highly politicized)
interpretations by certain jurists and altogether jettisoned by others—the concept
itself loses authority.
³⁹ Gerhard Anschütz, ‘Deutsches Staatsrecht’ in Franz von Holtzendorff and Josef Kohler (eds),
Enzyklopädie der Rechtswissenschaft (Munich: Duncker & Humblot, 1904), vol 2, 593; cited in
Böckenförde, above n 3, 58.
⁴⁰ See Böckenförde (ed), above n 4; Michael Stolleis, ‘Que significait la querelle autour de l’État
de droit sous le Troisième Reich?’ in Jouanjan (ed), above n 32, 373–383.
⁴¹ Lüth Judgment of 1958: Entscheidungen des Bundesverfassungsgerichts, 7, 198.
⁴² On the concept of the Sozialstaat and its tensions with the Rechtsstaat, see, eg, Mehdi Tohidipur
(ed), Der bürgerliche Rechtsstaat (Frankfurt am Main: Suhrkamp, 1978); Ernst Forsthoff, ‘Begriff
und Wesen des sozialen Rechtsstaat’ in Forsthoff, Rechtstaat im Wandel: Verfassungsrechtliche
Abhandlungen 1950–1964 (Stuttgart: Kohlhammer, 1964), 27–56.
⁴³ Ernst Forsthoff, ‘Über Maßnahme-Gesetze’ in Forsthoff, above n 42, 78–98; Konrad
Huber, Rechtsgesetz und Maßnahmegesetz: Eine Studie zum rechtsstaatlichen Gesetzesbegriff (Berlin:
Duncker & Humblot, 1964).
⁴⁴ Konrad Hesse, ‘Der Rechtsstaat im Verfassungssystem des Grundgesetzes’ in Tohidipur (ed),
above n 42, 290–314; Dieter Grimm, ‘Reformalisierung des Rechtsstaats als Demokratiepostulat?’
(1980) 10 Juristische Schulung 704–709. Cf Friedhelm Hase, Karl-Heinz Ladeur, and Helmut
Ridder, ‘Nochmals: Reformalisierung des Rechtsstaats als Demokratiepostulat?’ (1981) 11
Juristische Schulung 794–798.
The French concept of l’Etat de droit

The French concept of l’Etat de droit has an altogether different history. The
English ‘rule of law’ idea was the consequence of an attempt to give a formal-
ized interpretation of the engagement of the common law with modern ideas
of constitutionalism, and the German concept of Rechtsstaat evolved from the
tensions between authoritarianism and liberalism in governmental practice. But
the French concept was explicitly introduced by French jurists as a normative
principle to highlight perceived deficiencies in post-revolutionary governing
arrangements.
By the late-nineteenth century, French public law had come to revolve around
the concept of national sovereignty, with the legislative power, conceived as an
exercise of the general will, assuming a status of pre-eminence.⁴⁵ Only on this
basis did French jurists begin to ask whether and how the exercise of all powers of
the state, including the legislative power, could be made subject to law.
The jurist who did most to promote the case was Raymond Carré de Malberg.
Influenced by the work of the German jurists, Gerber and Laband,⁴⁶ Carré de
Malberg established as a general principle that the state could act only through
law. And, influenced in particular by Jellinek, he argued further that, as a legal
entity, the state could, through the concept of self-limitation, bind itself to its
own norms.⁴⁷
Developing this thesis, Carré de Malberg drew a distinction between the con-
cepts of l’Etat légal and l’Etat de droit. The former concept was directed primarily
to the administration and ensured that the administration acted according to
law; the administration ought to remain subordinate to the legislative author-
ity, locating the source and limitations of its jurisdictional authority in statutory
authorization. But l’Etat légal, the equivalent of Schmitt’s concept of the legis-
lative state or ‘rule by law’, was fully compatible with the doctrine of national
sovereignty formulated in the Third Republic. It was this rather thin account of
the law-state relationship that the concept of l’Etat de droit sought to supplant.
The latter concept grew from the conviction that law exists to protect individual
rights and that such rights were only partially protected by the idea of ‘rule by
law’. The concept of l’Etat de droit sought to supply authoritative norms that not
⁴⁵ See Marie-Joëlle Redor, De l’Etat légal à l’Etat de droit. L’ évolution des conceptions de la doc-
trine publiciste française 1879–1914 (Paris: Economica, 1992), 52–59; Guillaume Bacot, Carré de
Malberg et l’origine de la distinction entre souveraineté du peuple et souveraineté nationale (Paris:
CNRS Éditions, 1985).
⁴⁶ See PM Gaudemet, ‘Paul Laband et la doctrine française de droit public’ (1989) 4 Revue du
droit public 957–979. It might be noted that Carré de Malberg succeeded Laband in the chair of
public law at the University of Strasbourg when, after the First World War, Alsace was returned to
France.
⁴⁷ Raymond Carré de Malberg, Contribution à la Théorie générale de l’Etat [1920] (Paris: Dalloz,
2004), vol 1, 228–243. On the moral personality of the state, see also Léon Michoud, La théorie
de la personnalité morale et son application au droit français (Paris: Librairie Genérale de Droit et de
Jurisprudence, 1906).
II. Origins 323
only determined the relationship between administration and individual, but
also conditioned the exercise of legislative power.⁴⁸
In the discussion of the concept of l’Etat de droit amongst French jurists, it is
possible to detect the same tension that evolved in the German discourse between
positivist and anti-positivist conceptions. The French debate came to focus in
particular on the status of the 1789 Declaration of the Rights of Man and the
Citizen within the constitutional framework of the Third Republic. Since the
1875 Constitution had not referred to the 1789 Declaration, questions were
raised about its legal status. Positivists such as Esmein and Carré de Malberg
maintained that, without specific appendage to the Constitution, the Declaration
(being a statement of general principles only) could have no legal effect.
But the positivists were opposed by more sociologically orientated jurists, such
as Duguit and Hauriou, who claimed that the principles of the Declaration pro-
vided the foundation on which the republic was established and had ‘supra-con-
stitutional’ status. The Declaration, claimed Hauriou, had not only a legal but
also a special constitutional status. Although the claims of the Declaration, being
only in the Preamble, are not incorporated in the text of the Constitution, he
contended that ‘this means that they contain constitutional principles that rank
higher in order than the written constitution’.⁴⁹
As a matter of jurisprudence, this debate raises questions of primary impor-
tance: is law just a set of formally promulgated rules, or does it embrace the imma-
nent values of a living constitutional tradition? In the French context, this debate
had an air of unreality: lacking an institutional frame through which these juris-
tic questions could be addressed (there was, for example, no constitutional court
established in the French system with authority to address these matters), it was
difficult to see what impact this dispute might have in practice.⁵⁰ As a conse-
quence, the concept of l’Etat de droit has, in the French system, been addressed
primarily in the realm of legal thought rather than in legal practice.
Common origins
There is one common element in the analysis of origins of the concept in the
regimes of Britain, Germany, and France: debates over the idea of ‘the rule of law’
all reached their high point in the period of the late-nineteenth/early-twentieth
centuries. Further, although both the constitutional context and the particular
⁴⁸ Carré de Malberg, above n 47, vol 1, 488–494; Redor, above n 45, esp 294–316.
⁴⁹ Maurice Hauriou, Précis de droit constitutionnel (Paris: Sirey, 1923), 245; cited in Alain
Laquièze, ‘État de droit and National Sovereignty in France’ in Costa and Zolo (eds), above n 34,
261–291, 268. Hauriou’s argument has similarities to Schmitt’s claim about the existential (abso-
lute) meaning of the constitution: see above ch 9, 212–214.
⁵⁰ It should be noted, however, that the Conseil Constitutionnel, established in 1958, has signifi-
cantly altered the institutional landscape and since 1971 the Declaration has been constitutional-
ized, being used as a principle of constitutional interpretation: see Martin Harrison, ‘The French
Constitutional Council: A Study in Institutional Change’ (1990) 38 Political Studies 603–619.
formulation of the concept vary, these debates over the rule of law were fuelled by
liberal jurists. These jurists were expressing particular concerns about the impact
on the concept of law of the emergence of an extensive governmental system,
charged with the tasks of regulating social life and promoting the welfare of the
citizen through administrative measures.
The rhetoric of the rule of law did live on into the twentieth century, but its
message became more disparate. For some jurists, its claims are entirely illusory,
serving only as a justification for the supremacy of the judge over governmental
affairs.⁵¹ Others continue to promote the claims of the rule of law, largely as a
term that expresses the most basic legal values that modern government must
respect.⁵² Before considering the contemporary significance of the concept, we
must ask whether, regardless of particular political circumstances, the rule of law
can form a coherent, foundational concept.
III. Mode of Association
The most profound attempt to explicate the concept of the rule of law as a coher-
ent and foundational concept in public law is that made by Michael Oakeshott.⁵³
His argument is of particular interest because, by analysing the rule of law in
purely conceptual terms, he avoids the now widespread tendency to invoke the
term as an ideological slogan.
The basis of Oakeshott’s claim is that, as the expression of a specific mode of
human association, the concept of the rule of law must be specified in terms of
its conditions. The concept envisages humans joined in a relationship specifi-
able in terms of certain exclusive conditions, namely laws. But what does this
entail? As with every mode of association, the subjects united in a relationship are
abstractions, persons related to one another only in terms of certain conditions.
Oakeshott’s aim is to identify the character of this persona, and to specify the
conditions of this mode of association. This is a complex exercise because human
relationships emerge in the course of ordinary living—human practices exist
prior to any conscious reflection on their conditions on conduct. Of necessity,
then, the idea of the rule of law ‘stands for a mode of human relationship that has
been glimpsed, sketched in a practice, unreflectively and intermittently enjoyed,
⁵¹ Ernst Forsthoff, ‘Rechtsstaat oder Richterstaat?’ in Forsthoff, Rechtsstaat im Wandel:

Verfassungsrechtliche Abhandlungen 1954–1973 (Munich: Beck 1976), 243–256; JAG Griffith,
‘The Political Constitution’ (1979) 42 MLR 1–21; Michel Troper, ‘Le concept d’État de droit’
(1992) 15 Droits 51–63.
⁵² Jeff rey Jowell, ‘The Rule of Law and its underlying values’ in Jeffrey Jowell and Dawn Oliver
(eds), The Changing Constitution (Oxford: Oxford University Press, 6th edn, 2007), ch 1; David
Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing,
1999).
⁵³ Michael Oakeshott, ‘The Rule of Law’ in his On History and Other Essays (Oxford: Blackwell,
1983), 119–164.
half-understood, left indistinct’. Although reflection is required to reveal its con-
ditions, ‘the task of reflection is not to invent some hitherto unheard of human
relationship, but to endow this somewhat vague relationship with a coherent
character by distinguishing the conditions exactly as may be’.⁵⁴
Oakeshott addresses this mode of association indirectly and by way of con-
trast. He suggests that the most readily understood mode of human relation-
ship is transactional association. This is the mode of association in which persons
engage with one another for the purpose of satisfying particular needs and
desires. We recognize this mode of association in a contract for services between
buyer and seller. This is intrinsically a power relationship, with the nature of the
bargain dependent on the ability to make or refuse offers to transact. Moral or
legal considerations may in certain circumstances enter into the actual operations
of particular transactions. The point is that such considerations have no bearing
on categorial integrity: as an ideal mode, transactional association is geared to the
satisfaction of substantive wants.
This transactional mode of association also exists when agents join together to
promote some common interest. Rather than transacting with one another, they
join together in some guild, fellowship, or community with the common purpose
of achieving a desired substantive condition. Association here, says Oakeshott,
‘is the assemblage of an aggregate of power to compose a corporate or an associa-
tional identity designed to procure a wished-for satisfaction’.⁵⁵ That is, the agents
undertake to devote a proportion of their time, energy, or resources to the pursuit
of a common cause. The undertaking therefore involves an aggregation of power
deployed towards the efficient achievement of certain ends. Since the pursuit of
this general objective may require elaborate arrangements, formal organizational
structures—articles of association, offices of responsibility, the making of a con-
stitution—may be necessary. But such arrangements ‘are no more than the pru-
dential disposition of the available resources, instrumental to the pursuit of the
common purpose and desirable in terms of their utility, which itself lies in their
uninterrupted functionality’.⁵⁶ Once again, the fact that certain associates recog-
nize moral or legal considerations in conduct does not qualify the arrangement
as a distinct mode of association: as a mode of association ‘there is only Purpose,
Plan, Policy and Power’.⁵⁷
Oakeshott’s objective in introducing the transactional mode of association is
to explain that it is categorially distinct from the mode of association in which
associates are exclusively related in terms of law. To advance his argument, he
considers the relationship entailed in the playing of games. If we treat persons
involved in a game as competitors, the game can be viewed as a purposive enter-
prise: since the objective is to win, the game involves the pursuit of a desired
⁵⁴ Ibid, 120–121. Related to this claim of immanence is the conviction that the ‘laws’ that
declare the conditions of this human relationship are not like scientific laws of chemistry or phys-
ics; they are inventions that specify an ideal character.
⁵⁵ Ibid, 123. ⁵⁶ Ibid, 124. ⁵⁷ Ibid, 125.
substantive satisfaction. And since competitors relate to one another in terms of

relative skill needed to achieve success, the game is also a power relationship.
While the skill needed for success can be formulated in rules (‘always hold the
bat straight’), these are generally prudential considerations and the essence of the
skill is conveyed by way of instrumental precepts.
But Oakeshott argues that alongside the understanding of a game as a pur-
poseful enterprise is the identification of a game simply as a game. It is a set of
rules conceived neither as guides to the effective use of power nor as commands
to do or forbear, but solely as those rules that constitute the game itself. For per-
sons to be related in terms of these rules ‘is to be related in a mutual obligation
to observe the conditions which themselves constitute the game, an obligation
which cannot be evaded on the grounds of disapproval of or conscientious objec-
tion to what they prescribe and which may be symbolically expressed in deference
to their custodian: an umpire or a referee’.⁵⁸ So the rules of a game are identified
not only with respect to the desirability of the conditions they prescribe, but also
with respect to their authenticity. For those involved in the game, the authenti-
city of a rule is all that matters. Particular rules might be thought undesirable, but
cannot be said to be unfair: fair play ‘does not invoke considerations of “justice”;
it means neither more nor less than to play this game conscientiously according to
its authentic rules’.⁵⁹
Oakeshott’s point here is that the players of a game are related in two categor-
ially distinct modes of association. One is an actual and limited relationship
between real contestants, in which they seek a substantive outcome, namely to
win. The other is an ideal relationship that may be invoked in a particular contest
but exists independently of it; it is the mode of association understood expressly
and exclusively in terms of the recognition of rules. Only by focusing on the latter
are we are able to glimpse the idea of the rule of law.
This idea of a game understood purely in terms of its rules offers us a simpli-
fied illustration of the mode of association characterized by the rule of law. It is
simplified for four main reasons: first, the engagement in a game is intermittent
and a matter of choice; secondly, the engagement provides for the satisfaction of
a singular nature, sought at a particular moment in time; thirdly, the actions to
which the rules relate are generally few and simple, as are the rules themselves;
and, finally, the rules are the arbitrary conditions of an autonomous engagement,
making any inquiry into the authenticity of the rules, beyond a reference to the
rulebook itself, a difficult and possibly pointless exercise. For the purpose of com-
ing closer to ‘rule of law’ association, Oakeshott proposes that we consider a less-
intermittent mode of association such as is found in what may be termed ‘moral
association’.
Before considering moral association, we must first distinguish between rules
and other types of utterances (such as instructions, precepts, and maxims) that
⁵⁸ Ibid, 126. ⁵⁹ Ibid, 127.

offer guidance and advice. The latter types differ from rules in that their recom-
mendations are prudential, and the validity of an utterance is intrinsically linked
to its utility in realizing some substantive satisfaction. The validity of a rule, by
contrast, does not rest on its ability to realize some purpose; instead, it lies simply
in its authenticity as a rule situated within some rule-based scheme. Consider,
for example, the distinction between rules and commands. Commands are
addressed to identifiable agents, whereas rules govern any who may fall within
their jurisdiction. Commands are responses to particular circumstances, whereas
rules exist in advance of hypothetical situations which they may later be found
to cover. Commands are injunctions to perform actions and require obedience,
whereas rules assume agents wishing to perform self-chosen actions and stipu-
late conditions for the adherence to such action. Commands—as distinct from
demands—are utterances whose validity depends on their authority, which is
determined by reference to rules; commands therefore postulate association in
terms of rules. If this last distinction sheds some light on the relationship between
commands and rules, we might also note that there can be a substantive aspect to
rules. Thus, although rules carry obligations based on their authenticity, distinct
from the substance of what they prescribe, they can be evaluated not merely in
terms of their consistency within a given rule-based scheme, but also ‘as a contri-
bution to the shape of this set of rules as the desirable conditions of an invented
pattern of non-instrumental human relationships’.⁶⁰ In a simple game, this evalu-
ative engagement is likely to be strictly limited, but in more complex modes of
association, this engagement could be extensive. Moral association is one such
engagement.
Moral association, Oakeshott states, ‘is relationship of human beings in terms
of the mutual recognition of certain conditions which not only specify moral
right and wrong in conduct, but are prescriptions of obligations’.⁶¹ Agents are
related transactionally in performing actions to realize their wants. But they are
also under obligations to observe conditions that are neither instrumental to the
satisfaction of wants, nor have their own substantive purpose. As a more com-
plex mode of association, a morality is not entirely constituted by its rules. A
morality ‘is not a list of licences and prohibitions but an everyday practice’; it is
‘a vernacular language of intercourse’ which, like all language in use, ‘is neither
fi xed nor finished’. It can be ‘criticized and amended in detail’ but ‘never rejected
in toto’ and ‘moral conduct, conduct in respect of its recognition of the condi-
tions of a morality, is a kind of literacy’. Further, ‘just as considerations of literacy
do not themselves compose utterances, and just as a practice can never itself be
performed, so we may act morally but no actual performance can be specified in
moral terms’.⁶²
The essential point Oakeshott makes here is that a morality is not entirely con-
stituted by its rules. The point needs emphasizing since a moral practice is often
⁶⁰ Ibid, 131. ⁶¹ Ibid, 132. ⁶² Ibid, 133.

abridged and presented as a set of rules, and this can be a source of confusion.
When this confusion occurs, it should be noted, the rules to which moral prac-
tice might be reduced are not prudential directions or instructions; they exhibit
all the characteristics of rules as contrasted to commands. Even so, difficulties
persist. One concern is that if a moral practice is reduced to rules, it seems as
though moral considerations are being converted into ‘mere protocol’.⁶³ Another
is that the unavoidable indeterminacy of rules will lead inevitably to casuistry in
the application of rules to circumstances. The main problem, however, concerns
‘the difficulty of determining the authenticity of an alleged moral rule and of dis-
tinguishing this from the recognition of the “rightness” of the conditions it pre-
scribes’.⁶⁴ This last difficulty may not be a major problem in the case of a game,
where the question of authenticity can be resolved by consulting the rulebook.
But ‘in respect of a morality reduced to rules, where both authenticity and “right-
ness” are prime and contentious considerations, there is no easy solution’, and in
such circumstances many moralists may be inclined to abandon authenticity in
favour of ‘rightness’ as the ground of moral obligation.⁶⁵
By moving from the consideration of transactional association, through sim-
ple games and on to moral association, Oakeshott’s objective is to offer a defini-
tion of the rule of law. The expression, he argues, ‘stands for a mode of moral
association [conceived] exclusively in terms of the recognition of the authority of
known, non-instrumental rules (that is, laws) which impose obligations to sub-
scribe to adverbial conditions in the performance of self-chosen actions of all who
fall within their jurisdiction’.⁶⁶ This is a highly formal definition, especially since
association in respect of the rule of law cannot be association to promote a sub-
stantive satisfaction. Neither can the relationship be forged by common recogni-
tion of ‘the desirability of the conditions prescribed in all or any of the laws, or of
some quality of “rightness” or “justice” or “reasonableness” they may be deemed
to possess’. The sole term of the relationship constituted by the rule of law, he
claims, is recognition of the authority or authenticity of the laws.
The most basic criteria of this mode of association are that associates know what
the laws are and that a procedure exists for determining the authenticity of the
rules. These criteria are realized only where laws have been deliberately enacted
or may be deliberately repealed; this mode of association therefore requires the
establishment of a ‘sovereign’ legislative office. But the rule of law does not pre-
scribe any particular constitution of this office. All that is required is that, since
the authority of the office cannot be identified with the natural qualities (wis-
dom, charisma, virtue) of its contingent occupants, it must be an endowment of
the office itself.
⁶³ Ibid, 134–135. The problem here is that it ‘invites the revulsion in which it is translated into
a meaningless assemblage of absolute “rights”, or the nonconformity which seeks release in a claim
to be obligated by “conscience”, or in the declarations of a self-conscious “immoralist” who thinks
that these precise rules of grammar somehow stand in the way of his having a “style” of his own’.
⁶⁴ Ibid, 135. ⁶⁵ Ibid. ⁶⁶ Ibid, 136.
Although authority of the laws, derived from authenticity of enactment, is the
most basic condition, the conditions that laws impose on conduct have other
qualities. The most important is that of the justice of their requirements: the jus
of lex. This argument about the jus of lex parallels the difficulty of identifying
moral association in terms of a code of rules. As a mode of association specified
in terms of laws, the rule of law must be one in which ‘lex (a rule understood in
terms of its authenticity) and jus (a rule understood in terms of its “rightness” or
“justice” of what it prescribes) are both recognized but are not confused’.⁶⁷
Oakeshott makes it clear that the jus of lex is not concerned with the manner
in which the legislative office is established; the claims of democracy, for example,
form no part of these concerns. It cannot be identified with success in promoting
the common good, that is, with an increase in welfare or the fairness of distribu-
tion of such benefits. Neither is it related to the universal recognition of certain
basic goods (bodily integrity, freedom of speech, etc) that are claimed as condi-
tions of human flourishing. The jus of lex must comprise moral, non-instrumen-
tal considerations.
It might be felt that other criteria need to be included in these considerations,
such as the need to ensure that laws are not secret or retrospective, or that the
only obligations imposed on associates be by way of laws, or that all associates be
equally subjected to these obligations. But Oakeshott argues that strictly speak-
ing these are not considerations of jus but are inherent in the idea of lex. So what
are these considerations?
Oakeshott notes that most theorists here fall back on an inherently just ‘higher’
or ‘fundamental’ law, a law of nature or of God, whether found in rational moral
deliberation or in the will of some divine legislator. This raises speculation about
the requirements of such fundamental law. But for Oakeshott the jus of lex must
be sought ‘in its relation to the provisions of a genuine law which (therefore) is
concerned, not with the approval or disapproval of actions, but with the prescrip-
tion of conditions to be observed in performing self-chosen actions, and which
differ from the provisions of lex only in respect of their greater generality’.⁶⁸ This
is less than crystal clear. The jus of lex does not involve the search for overarching
‘fundamental values’ or an inviolable set of ‘human rights’, because that would
reduce considerations of jus into substantive satisfactions. But it is also logically
impossible that ‘the necessarily conditional prescriptions of lex can derive their
jus from their conformity (or absence of conflict) with a set of unconditional “val-
ues”, “rights” or “liberties”, etc’.⁶⁹
Oakeshott is adamant that this search for unambiguous and universal criteria
of the jus of lex is beside the point; whether or not such criteria are attainable, the
rule of law has no need of them. The rule of law draws a distinction between jus
and the procedural considerations for determining the authenticity of lex and
recognizes formal principles of a legal order. But beyond this, Oakeshott says, the
⁶⁷ Ibid, 136. ⁶⁸ Ibid, 142. ⁶⁹ Ibid.

rule of law ‘may float upon the acknowledgement that the considerations in terms
of which the jus of lex may be discerned are neither arbitrary, nor unchanging,
nor uncontentious, and that they are the product of a moral experience which
is never without tensions and internal discrepancies’.⁷⁰ Specifying the jus of lex
turns out to be a more fluid and ambiguous undertaking than might have been
envisaged. It is ‘not a set of abstract criteria but an appropriately argumentative
form of discourse in which to deliberate the matter; that is, a form of moral dis-
course, not concerned generally with right and wrong in human conduct, but
focused narrowly upon the kind of conditional obligations a law may impose,
undistracted by prudential and consequentialist considerations, and insulated
from the spurious claims of conscientious objection, of minorities for exceptional
treatment and, so far as may be, from current moral idiocies’.⁷¹
Armed with this account of the rule of law, Oakeshott returns to the offices
necessary to this mode of association. Laws ‘are unavoidably indeterminate
prescriptions of general adverbial obligations’ which ‘subsist in advance and in
necessary ignorance of the future contingent situations to which they may be
found to relate’. Since they are unable to declare their meaning in respect of any
circumstantial situation, a second necessary condition of the rule of law—in add-
ition to the legislator—must be an office with authority to rule on actual situations
solely in respect of their legality, and to assign a remedy for inadequate perform-
ance. This is the office of judiciary, in which a court reaches a conclusion on
whether a breach of the law has occurred with respect to some actual occurrence.
Judicial deliberation, he contends, involves an ‘exercise in retrospective casuistry’
which, like all casuistical enterprise, ‘is a devious engagement’.⁷² But it is gov-
erned by rules and conventions designed to focus on the relevant considerations;
it may not regard itself as a custodian of a public policy and ‘knows nothing of a
“public interest” save the sum of the obligations imposed by law’.⁷³ There is a final
condition of association: executive power, or ‘offices equipped with procedures
composed of rules and authorized to compel the performance of the substantive
actions commanded by a court of law, and custodians of “the peace” ’.⁷⁴
Oakeshott here presents a systematic account of the rule of law as a coherent
and foundational concept. The rule of law denotes ‘both a strict and an unex-
acting relationship’ concerning a relationship of personae rather than persons, of
association not designed for the purpose of procuring substantive satisfactions
but of common obligation to non-instrumental rules, and of a set of rules rec-
ognized not in terms of their values (ie, their rationality, fairness, or justice) but
of their authenticity. It is a mode of association created as a product of human
imagination. But can it be more than a logician’s dream? Can this ideal mode of
human association form the basis of a practical engagement?
One starting point is to show how the ingredients of such an association are
created and assembled. If we turn to the European experience, we see that the
⁷⁰ Ibid, 143. ⁷¹ Ibid. ⁷² Ibid, 145. ⁷³ Ibid, 146. ⁷⁴ Ibid, 148.

states of modern Europe emerged from a variety of medieval realms and princi-
palities. In the process of forging a modern state, each set about framing a ‘law
of the land’ from the miscellany of laws it had contained. These states recog-
nized rulership as different from a proprietorial inheritance of property; rather,
it was an office charged with particular responsibilities. But this experience
does not take us very far. One difficulty is the survival within the modern office
of the ruler of the idea of lordship. Another is the fact that the modern state
does act as an enterprise association, united in the pursuit of a common pur-
pose, whether that be the exploitation of the natural resources of its territory
or the well-being of its members. In addition to these characteristics of modern
political association, difficulties also exist in the idea of law that permeates this
tradition.
For much of their history, modern European states have represented themselves
as ruled not merely by the jus inherent in lex, but by jus in the extended sense of
a natural, rational, or higher law. This difficulty is not dissipated by a recent ten-
dency to formulate abstract notions of jus as positivized principles in the form
of bills of rights or a basic law. To engage the jus of lex, Oakeshott contends, is
to address a particular type of moral consideration: ‘neither an absurd belief in
moral absolutes (the right to speak, be informed, to procreate and so on) which
should be recognized in law, nor distinction between rightness and wrongness of
actions in terms of the motives in which they are performed, but the negative and
limited consideration that the prescriptions of the law should not conflict with a
prevailing educated moral sensibility capable of distinguishing between the con-
ditions of “virtue”, the conditions of moral association (“good conduct”), and
those which are of such a kind that they should be imposed by law (“justice”)’.⁷⁵
The jus of these conditions involves ‘a combination of their absolute faithful-
ness to the formal character of law and to their moral-legal acceptability, itself
a reflection of the moral-legal self-understanding of associates which . . . cannot
be expected to be without ambiguity or internal tension—a moral imagination
more stable in its style of deliberation than in its conclusions’.⁷⁶
Oakeshott argues that the idea of a state animated by adherence to the rule of
law is deeply rooted in European civilization, but it is difficult to see that idea at
work today. Pioneered by Bodin and Hobbes, the presuppositions of this under-
standing of the ‘law-governed state’ were, he explains, ‘fully explored in Hegel’,
who rejected the idea of natural law as the measure for gauging the justice of the
laws, and the presuppositions can be seen operating in ‘a slimmed-down version
in the writings of the jurist Georg Jellinek’ and also in some of the positivist
modern jurists.⁷⁷ Oakeshott offers us what is probably the most rigorous and
coherent account of the concept of the rule of law as a foundation of public law.
Nevertheless, his concept serves only to highlight how far removed we are today
from the conditions of its realization.
⁷⁵ Ibid, 160. ⁷⁶ Ibid, 160–161. ⁷⁷ Ibid, 162.

IV. The Rule of Law as Liberal Aspiration
Oakeshott’s analysis suggests that the rule of law is a coherent concept only
when three basic conditions are accepted. The first is that collective human asso-
ciation—the state—is conceived purely as a type of moral association, rather
than as a collective association seeking the realization of some desired goal. The
second is that the nature of this type of association counts as an expression of
the rule of law only if one conceives it as analogous to a game viewed from what
Hart calls ‘the internal point of view’.⁷⁸ Just as games are constituted by a set of
rules, so too must the state be understood as an entirely rule-based association.
The third condition requires us to grasp the ineffable idea of the jus of lex. This
appeals to the conditions of justice implicit in the idea of law which prevent the
rule of law being reduced to a purely formalistic notion and, at the same time, it
resists the importation of substantive values derived from natural law (eg, bodily
integrity) or conventional politics (eg, democracy). In outlining the conditions of
the rule of law, Oakeshott portrays the state as a nomocracy.
These conditions of nomocratic order are incapable of realization in practice.
Even Oakeshott recognizes that the modern European state is itself built on ‘an
unresolved tension between . . . two irreconcilable dispositions’, one a type of
moral association and the other a form of transactional association.⁷⁹ The prac-
tical question, then, is whether Oakeshott’s concept of the rule of law can serve as a
measure against which the laws and practices of modern states may be evaluated.
To address this question, it is necessary to differentiate more precisely between
two aspects of the concept which until now have only been mentioned in pass-
ing. This is the distinction between ‘rule by law’ and ‘rule of law’. Each aspect is
implicit in the concept of the rule of law, but they are not often clearly distin-
guished. My argument will be that, especially in the classical liberal treatment of
the concept, these two aspects deal with different questions and pull in different
directions. Rule by law focuses on the qualities inherent in the concept of law.
Rule of law addresses a more explicitly political issue, namely the desirability of
establishing a fully institutionalized governing order in which everyone has an
incentive to act in accordance with the rules. The differences between these two
aspects of the concept are quite marked in classical liberal approaches to the rule
of law. Each aspect requires separate consideration before the underlying liberal
assumptions can be reassessed.
Rule by law
At its most basic, the rule of law means the rule of the law. In this under-
standing, law is the essential means through which the business of governing is
⁷⁸ HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 55–56.
⁷⁹ Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human
Conduct (Oxford: Clarendon Press, 1975), 185–326, 201. See above ch 6, 159–163.
conducted. Th is is the core meaning of the expression, ‘government according
to law’: government must be able to specify a law that authorizes each and every
one of its actions.⁸⁰ Th is highlights an important principle, namely that govern-
ment is a creature of the constitution and possesses only the powers recognized
in that constitution. But, though important, it is purely formal. It suggests that
the Rechtsstaat is merely a legislative state. As Schmitt explains, if everything
that the legislative authority dictates is law, then, by this logic, ‘every absolute
monarchy is also a Rechtsstaat, for in it the “law” rules, specifically the will of
the king’.⁸¹
Schmitt here recognizes that ‘if the “rule of law” should retain its connection
with the concept of the Rechtsstaat, it is necessary to incorporate certain qualities
into the concept of law, through which it is possible to distinguish a legal norm
from a command based on mere will or a measure’.⁸² The rule of law, he argues,
must be distinguishable from the rule of persons, ‘whether it is an individual
person, an assembly, or body whose will takes the place of a general norm that is
equal for all and determined in advance’.⁸³ The rule of law implies, in short, that
law must be understood as a norm of general character, that law is not essentially
voluntas but ratio.
Only when these intrinsic qualities of law are recognized can we move from
government ruling by means of law (ie, in accordance with edicts of the legis-
lative authority) and to government that is also subject to law (ie, subject to a
framework of general norms). What, then, are these intrinsic qualities that meet
the standards implied by this principle of the rule of law?
The answers jurists have offered exhibit a considerable degree of consensus.
The classic formulation is provided by Lon Fuller’s specification of eight formal
qualities that are intrinsic to the idea of law. These are that laws should (i) take
the form of general rules, which should (ii) be publicly promulgated and (iii) be
of prospective effect. The rules should also (iv) be clear and understandable, (v)
exhibit a degree of consistency or freedom from contradiction, (vi) maintain a
degree of constancy over time and (vii) not demand action which it is impos-
sible to perform. Fuller argues finally that (viii) there should be a significant
degree of congruence between the rules as promulgated and their enforcement
by officials.⁸⁴
⁸⁰ See, eg, the classic English case of Entick v Carrington (1765) 19 StTr 1030 in which the king’s
messengers, having relied on a warrant issued by the Secretary of State, were successfully sued in
trespass for search of plaintiff ’s house and seizure of property. Rejecting the argument of ‘State
necessity’, the court held that if the government possessed lawful authority ‘it will be found in our
[law] books. If it is not found there, it is not law’.
⁸¹ Carl Schmitt, Constitutional Theory [1928] Jeff rey Seitzer (trans) (Durham, NC: Duke
⁸² Ibid (emphasis in original). Note also Oakeshott’s analysis of the distinction between rules
and commands: above 327.
⁸³ Schmitt, above n 81, 139.
⁸⁴ Lon L Fuller, The Morality of Law (New Haven, CT: Yale University Press, 2nd edn, 1969),
ch 2.
With minor variation, these qualities are also highlighted by many jurists.⁸⁵
Fuller claims that these are ‘moral’ qualities, but in the light of Oakeshott’s argu-
ment about the nature of ‘moral association’, Fuller’s criteria are best understood
as elaborating conditions of rule-based association. We understand them as moral
qualities, in the same way we understand games as being constituted by their rules.
However, since Fuller regards law as ‘the enterprise of subjecting human conduct
to the governance of rules’,⁸⁶ these qualities can just as readily be understood as
functional or prudential criteria; serious failure to comply with these criteria would
make it impossible to subject human conduct to rules, thereby rendering the rule
system ineffective. Just as it might be said that a knife is not a knife unless it has
the ability to cut, so too must law be capable of guiding behaviour. For this reason,
Raz has argued that although adherence to these standards is a virtue, it is a virtue
of an instrumental nature and is ‘not a moral virtue as such’.⁸⁷
Raz elaborates this point by claiming that although ‘the rule of law is an inher-
ent virtue of the law’, it is merely one virtue—one aspiration—among several.⁸⁸
Adherence to the rule of law in this sense stands in opposition to ‘arbitrary
power’,⁸⁹ and thereby promotes (a particular conception of) individual liberty.⁹⁰
But Raz claims that this virtue of a legal system is ‘not itself an ultimate goal’.⁹¹
Conformity to these qualities, hence conformity to the rule of law, may make
the law ‘a good instrument for achieving certain goals’ but ‘sacrificing too many
social goals on the altar of the rule of law may make the law barren and empty’.⁹²
Raz here implicitly accepts the point about the modern state being more than
(in Oakeshott’s language) moral association; he recognizes that it also exists to
meet certain social purposes. Consequently, legal systems will, of their nature,
accommodate tensions between the rule of law and other values and goals.
Conformity to the rule of law—or, more precisely, rule by law—can therefore
only be ‘a matter of degree, and though, other things being equal, the greater the
conformity the better—other things are rarely equal’.⁹³
By treating Fuller’s qualities as prudential criteria, as Raz does, the idea of ‘the rule
of law’ is drawn into a closer alignment with that of ‘rule by law’. But is this justi-
fied? Mindful of Oakeshott’s warning of the error in too readily reducing rule-based
⁸⁵ See, eg, FA Hayek, The Constitution of Liberty (London: Routledge, 1960), ch 10; Joseph Raz,
‘The Rule of Law and its Virtue’ in his The Authority of Law: Essays on Law and Morality (Oxford:
Clarendon Press, 1979), ch 11; Lawrence Solum, ‘Equity and the Rule of Law’ in Ian Shapiro (ed),
The Rule of Law: Nomos XXXVI (New York: New York University Press, 1994), ch 6.
⁸⁶ Fuller, above n 84, 106. ⁸⁷ Raz, above n 85, 226. ⁸⁸ Ibid.
⁸⁹ Dicey, above n 10, 198; Raz, above n 85, 219–220.
⁹⁰ Dicey, above n 10, 202: ‘freedom of person is not a special privilege [conferred by a constitu-
tion] but the outcome of the ordinary law of the land enforced by the Courts’; Hayek, above n 85,
153: ‘The conception of freedom under the law that is the chief concern of this book rests on the
contention that when we obey laws, in the sense of general abstract rules laid down irrespective of
their application to us, we are not subject to another man’s will and are therefore free’. See further
Charles Taylor, ‘Kant’s theory of freedom’ in his Philosophy and the Human Sciences: Philosophical
Papers (Cambridge: Cambridge University Press, 1985), vol 2, 318–337.
⁹¹ Raz, above n 85, 229. ⁹² Ibid. ⁹³ Ibid, 228.
conduct to prudential considerations, Fuller’s criteria need to be carefully examined.
Some uncertainty becomes evident with respect to the qualities that Fuller identi-
fies as constituent elements of ‘rule of law’ ordering. The first six qualities are purely
formal characteristics of rules: rule-based order, Fuller claims, should consist of gen-
eral, public, prospective, clear, consistent, and stable rules. These are the conditions
of authenticity of rule order; they are, in Oakeshott’s terminology, conditions of lex.
But the last two qualities—that rules should not require the impossible and that
there should be a degree of congruence between rules and their enforcement—do
not refer to qualities of rules stricto sensu. These latter criteria seek to align rules to
conditions of compliance. They are therefore not so much attributes of lex as social
conditions of efficacy, in that, rather than being inherent qualities of rules, they are
qualities that a rule-order achieves only in a particular social context.
If general conditions of efficacy are to be included in these rule of law qualities,
then Fuller’s are too limited. Raz notes, for example, that the conditions of impar-
tial and effective enforcement of the rule-order are essential criteria of the rule of
law. These include: respect for the principle of judicial independence, which is the
precondition of impartial administration of the rules; adherence to the principles
of adjudicative fairness, which ensures the integrity of rule-based dispute-reso-
lution; establishment of judicial review of governmental action, which protects
against the erosion by governments of the rule-based regime; and ease of citizen
access to the courts, which safeguards their rights.⁹⁴ These are basic institutional
conditions that bolster the formal qualities of rule-based order, converting it into
an operative regime animated by the ideal of the rule by law. If this is correct,
then Fuller’s eight qualities of the rule of law fall between two stools. If they are
related primarily to the conditions of lex, these qualities, by incorporating efficacy
conditions, are over-inclusive. Yet if the qualities of the rule of law must include
conditions of efficacy, then Fuller’s—by ignoring the institutional arrangements
that bolster formal rule-based action—are too limited.
Most jurists who seek to make sense of the principle of the rule of law start
from the idea of rule by law. Viewing the threat of ‘arbitrary’ governmental action
as the main threat to liberty, and thereby revealing their classical liberal convic-
tions, they first develop a concept of law as a system of rules and then elaborate
the institutional conditions that protect the integrity of that rule system. This
concept of the rule of law makes no reference to more general constitutional val-
ues, such as those that flow from democracy or broader ideas of social justice. In
this sense, formal rule of law qualities are not incompatible with dictatorship.⁹⁵
This concept serves mainly to identify the virtues of a rule-system, as differenti-
ated from orders and commands, and to outline the conditions under which this
system of legal rules can operate free from political manipulation.
⁹⁴ Raz, above n 85, 216–217.

⁹⁵ See Robert Barros, ‘Dictatorship and the Rule of Law: Rules and Military Power in
Pinochet’s Chile’ in José María Maravall and Adam Przeworski (eds), Democracy and the Rule of
Law (Cambridge: Cambridge University Press, 2003), 188–219.
Rule of law
The concerns generated by a ‘rule by law’ perspective can be contrasted with a
more political aspect of the rule of law often advocated by liberals. Rather than
elaborating the conditions of lex (or even the jus of lex), this political concept of
the rule of law aims to specify the conditions of legitimate political rule.
As with rule by law, this political concept (hereafter, the doctrine of the rule of
law) is grounded on classical liberal convictions. While the ideal of rule by law
is driven by the objective of curbing arbitrariness in the regime of positive law,
the rule of law doctrine is driven by the objective of curbing arbitrariness across
the entire governing regime. Consequently, although the particular form of rule
is irrelevant to rule by law, it becomes the central issue for the doctrine of the
rule of law. Although rule by law may be compatible with dictatorship, from the
doctrinal perspective this form of rule is directly challenged. The doctrine of the
rule of law maintains that dictatorship is fundamentally destructive of the values
inherent in the concept.
The argument driving this liberal doctrine runs as follows. When govern-
mental power is monopolized, law is used as an instrument of personal rule.
And since this is corrosive of liberty, the doctrine must protect against the pos-
sibility of dictatorship. The doctrine requires that power be dispersed to protect
values inherent in the rule of law. The doctrine’s objective is to create a set of
constitutional rules to further three key aims: first, to ensure that governmen-
tal action is entirely institutionalized; secondly, to ensure that governmental
powers are differentiated and dispersed; and, thirdly, to ensure that those exer-
cising governmental authority have incentives not to subvert this institutional-
ized order.
The rule of law doctrine suggests that a properly designed constitutional regime
is one in which the rules establishing and regulating governmental action disperse
that power, especially through the separation of legislative, executive, and judi-
cial power. Official powers are enumerated in the constitution and checks are set
in place to ensure that office-holders do not find it advantageous to act contrary
to their institutional responsibilities. The doctrine seeks both to establish a rule-
based constitutional order and, by incorporating incentives that protect against
its subversion, ensures that the constitutional order maintains its status. The basic
liberal principle behind this doctrine is that of the constitution as ‘a machine that
would go of itself’.⁹⁶
The doctrine of the rule of law presents itself as ‘the rule of rules’, the correlative
principle of modern constitutionalism based on the doctrine of the separation
of powers. Its limitations are evident, not least because, founded on eighteenth-
century political convictions concerning limited government, it has little bearing
⁹⁶ See Michael Kammen, A Machine That Would Go of Itself: The Constitution in American
Culture (New York: Knopf, 1987), 16–19.
on governing in the contemporary world. Like rule by law, the doctrine of the
rule of law presents itself as an impossible ideal.
V. Rechtsstaat or Staatsrecht?
The central problem with the concept of the rule of law as developed in liberal phil-
osophy is that it sets up an ideal arrangement for rule systems, whether of positive
law or public law, that can never be realized. The problem with such unachievable
ideals is that the concept is susceptible to use as an ideological weapon. In the
practical world of contemporary government, the rule of law can be deployed for
anti-governmental purposes. This type of political strategy takes various forms.
It might conceive the state as a form of rule association (Oakeshott’s moral asso-
ciation), ignoring its other public purposes. It might seek to limit government
to the task of rule-execution. Or it might invoke the rule of law to bolster the
status of the judiciary as guardians of rule order, without acknowledging that the
judiciary is itself limited to the task of rule-interpretation.
The limitations of the liberal doctrine of the rule of law are particularly evident
with respect to the claim that the constitution establishes machinery that can
run itself. Just as some external action is needed to set machines in operation,
so too must the institutional mechanisms of modern constitutions be driven by
social and political action. Perhaps this is the wrong metaphor. Constitutions
may not be machines able to run themselves, but neither are they merely the
instruments of power-holders. Constitutional rules are not self-generating, nor
are they just tools of dominant power groups. Although shaped by the dominant
power interests in society, constitutional rules can nonetheless guide, shape, and
indeed generate power. It is this power-generating quality of constitutional rules
that is often overlooked in classical liberal formulations of the rule of law.
Under the influence of classical liberal ideas, the exercise of power is com-
monly regarded as a potential restriction on some pre-existing liberty. Liberal
formulations of the rule of law tend to treat power and liberty as antagonistic con-
cepts: in the rule by law vision, rule order operates as a counterpoise to ‘arbitrary
power’ and in the political doctrine of the rule of law the objective is to establish
a rule framework that divides, limits, and constrains the exercise of governmental
power. To develop a more practical and positive account of the concept of the rule
of law, we might begin by reassessing the relationship between power and liberty.
The most appropriate starting point is to consider the function of constitutional
rules in the light of the distinction that philosophers have drawn between regula-
tive and constitutive rules.⁹⁷
⁹⁷ See John Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge
University Press, 1969); John Searle, Mind, Language and Society: Philosophy in the Real World
(New York: Basic Books, 1998), 131–134.
Regulative rules influence behaviour that exists independently of the rule (eg,
‘do not run in the school corridors’). But constitutive rules make possible action
that cannot take place without the existence of the rule. The clearest illustrations
of constitutive rules are those that create games: the game of chess, for example,
can only be played by observing the rules on how pieces move across the board.
Constitutive rules create certain practices (such as the practice of playing chess)
and institutions (the institution of chess). So it could be said that while regulative
rules impose restrictions on existing power relations, constitutive rules create a set
of power relations. Further, while regulative rules might restrict liberty, consti-
tutive rules—by creating an ability to do certain things that could not be under-
taken without them (eg, play the game of chess)—are liberty-enhancing.
It is in this distinction that we see the essence of Oakeshott’s account of the
rule of law as a mode of association: the rule of law makes sense only when
political association—the governing relationship—is constituted entirely by the
rules that establish and regulate governmental power. But as Oakeshott him-
self recognizes, this argument about constitutive rules does not readily extend
beyond the sphere of games into that of the governing relationship.⁹⁸ It is easy to
see the way in which constitutive rules establish activities that do not otherwise
exist in the material world (eg, playing chess). It is less obvious with a governing
relationship of permanent duration, involving the allocation of large-scale
material resources, containing a multiplicity of rules of uncertain status, and
with no obvious exit option.
The critical issue with respect to the rule of law, then, must be the extent to
which the governing relationship is bounded by constitutive rules. Within the
political sphere there are obviously certain types of behaviour that are consti-
tuted by the rules. Electoral rules, for example, are constitutive of the activity of
winning office: voting is a meaningful action only within the context of these
rules, and an individual is able legitimately to assume the office of Member of
Parliament, prime minister, or president only by virtue of such rules. But even
in this case, the activity of voting is recognized as authoritative only because
of social acceptance of many background practices concerning constitutional
government.⁹⁹
But if the constitutive status of electoral rules is ambivalent, there are other
aspects of political or governmental action that cannot be defined with reference
⁹⁸ See above 325–326.

⁹⁹ See Ignacio Sánchez-Cuenca, ‘Power, Rules, and Compliance’ in Maravall and Przeworski
(eds), above n 95, 62–93, 75: ‘It is easy to understand that although voting is completely depend-
ent on electoral constitutive rules, acceptance of the results of the ballot has no obvious parallel
in games. . . . The losing candidate in a presidential contest may decide that the elections must be
annulled. If he has the support of the army, he will break the constitutive rules. He will become
president despite having lost the elections. He becomes president by sheer force. Obviously, some-
one could refuse to call him president, because he has not been chosen according to the procedure
established by the constitutive rule, but the new ruler, no matter what we call him, will do the kinds
of things that the last authentic president did’.
to constitutive rules. Consider, for example, the situation when one state deploys
its military forces to invade the territory of another. Under the state’s constitu-
tion, a formal declaration might be required before engaging in war with another
country. But this type of military action can—and does—take place without
such a declaration. So the action cannot be described as being constituted by the
rule. As Sánchez-Cuenca notes, ‘even if there is a constitutive rule that defines
what counts as war, the occurrence of war is not very dependent on that rule’.¹⁰⁰
The point is this: in the political sphere, many (perhaps most) constitutional
rules are not constitutive rules. In this sphere, adherence to the existing constitu-
tional rules is not a straightforward matter of either playing the game or not, not
least because the contested authority of many of these constitutional rules itself
becomes part of the game.
Rather than asserting the vital importance of the rule of law and its principles
of rule-compliance and equality before the law, a more appropriate starting point
might be to acknowledge that certain inequalities are intrinsic to the governing
relationship and then ask the basic question: why do rulers (to the extent that
they do) comply with the rules? The answer—as supplied by Stephen Holmes—is
that people restrain themselves ‘either when they are in the grip of moral norms
or when they anticipate the advantages of self-restraint’.¹⁰¹ Holmes suggests that,
rather than assume the authority of the norms in this sphere, we might sensibly
focus on the advantages of self-restraint. We might, in particular, examine the
conditions under which office-holders might come to regard rule constraints as
power-enabling.
A key principle, argues Holmes, is that of deniability: ‘Shedding respon-
sibilities, downsizing goals to match capacities, is a prudent step for the most
Herculean of bosses, commanders, rulers, panjandrums, chiefs’.¹⁰² Control is
enhanced, especially in the typical political situation in which problems appear
intractable, where office-holders can deny responsibility. Viewed from this per-
spective many nostrums underpinning the principle of the rule of law are cast
in a different light. The continuous differentiation of governmental tasks—such
as differentiation between executive and judicial tasks, or between law-finding
(judges) and fact-finding (juries)—is a means of maintaining authority. To defend
against external threats, argues Holmes, ‘prescient rulers will create, train, and
finance a military establishment’, while in order to defend against internal threats
‘they will create, train, and finance a judicial establishment’.¹⁰³ The institution-
alization of political power and the establishment of rule-based governmental
procedures are, in short, methods of maintaining and enhancing governmental
authority. Constraints on power generate power.
¹⁰⁰ Ibid, 77; cf John Searle, The Construction of Social Reality (New York: Free Press, 1995), 89.
¹⁰¹ Stephen Holmes, ‘Lineages of the Rule of Law’ in Maravall and Przeworski (eds), above
n 95, 19–61, 24.
¹⁰² Ibid, 26. ¹⁰³ Ibid, 36.
This account aligns the rule of law (Rechtsstaat) with the dynamic that
drives the development of public law (Staatsrecht/droit politique). Governments
rule by means of law because, by maintaining such rule-derived expectations,
they foster the allegiance of their citizens, which is, in turn, power-generating.
Governments bind themselves to respect constitutional rules largely from self-
interest, and they do so only when conditions exist that make constitutional
rules self-enforcing.¹⁰⁴ That is, to the extent that rule of law values are main-
tained, it is because they are perceived as prudential necessities rather than
universal moral values. To the extent that the doctrine of the rule of law—the
precepts of constitutionalism—is upheld, this is because a regime has been
established which obeys Madison’s instruction that ‘ambition must be made to
counteract ambition’.¹⁰⁵ In Madison’s words, ‘you must first enable the govern-
ment to control the governed; and in the next place oblige it to control itself ’.
And although a dependence on the people is ‘the primary control on the govern-
ment’, Madison recognizes that ‘experience has taught mankind the necessity of
auxiliary precautions’.¹⁰⁶
The rule of law is just one expression of the objective of obliging government
to control itself. It is part of the ‘auxiliary precautions’ needed in government.
In this sense, the rule of law forms one aspect of the political theory of consti-
tutionalism. But once constitutionalism is conceived to be a practical work-
ing principle of government rather than some universal moral aspiration, the
central issue ceases to be that of achieving consensus amongst the citizenry on
the moral authority of the principle. Instead, constitutionalism is seen to raise
a major problem of social co-ordination. From this perspective, constitutional
rules not only establish a set of governing institutions; they also endow those
institutions with particular interests. The challenge is that of establishing an
institutional arrangement with the potential to establish a system of counter-
vailing powers such that it is able to function in a way that bolsters mutual
respect for the rules.¹⁰⁷
Such constitutional arrangements work not because they are required for the
realization of some universal moral consensus, the achievement of the rule of
law, or fulfilment of the ideals of the Rechtsstaat. They operate through a polit-
ical logic, the workings of political right (droit politique), or Staatsrecht. Far from
exhibiting some moral consensus, such arrangements work because the interests
of citizens vary and there is no authoritative metric for resolving these differences.
¹⁰⁴ For the political scientist’s modelling of these conditions, see Barry Weingast, ‘The Political
Foundations of Democracy and the Rule of Law’ (1997) 91 American Political Science Review
245–263.
¹⁰⁵ James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 51 (Madison), 319.
¹⁰⁶ Ibid, 320.
¹⁰⁷ This is similar to what Dahl called ‘polyarchy’: Robert Dahl, Polyarchy (New Haven, CT:
Yale University Press, 1971), ch 1: polyarchy is a system in which government are selected through
elections and eight conditions of polyarchy (freedom of association, expression, free elections, etc).
Constitutional arrangements are co-ordination mechanisms that enable citizens,
despite their differences, to work in concert and to mutual advantage.¹⁰⁸ The
arrangements work well only if they are able to garner the support needed to
ensure resistance to any intended breach of the basic constitutional rules. And
such support rests primarily on the type of prudential political reason that is
implicit in the workings of political right.
¹⁰⁸ Russell Hardin, Liberalism, Constitutionalism, and Democracy (Oxford: Oxford University
Press, 1999), esp ch 3: ‘A constitution is not a contract . . . its function is to resolve a problem that is
prior to contracting by first coordinating us. . . . [I]n coordination theory the issue is not that we did
agree but that our incentives and those of virtually everyone are to go along once a particular coor-
dination is established. Coordination theory is primarily a theory of workability, not of normativity or
obligation’ (at 87: emphasis in original).
12
Constitutional Rights
At the beginning of Part II of Rights of Man, Paine declared that American inde-
pendence, ‘considered merely as a separation from England, would have been a
matter but of little importance, had it not been accompanied by a revolution in the
principles and practices of governments’. America had taken a stand not only for
herself but for the modern world. ‘Even the Hessian’, he explained, ‘though hired
to fight against her, may live to bless his defeat; and England, condemning the
viciousness of its government, rejoice in its miscarriage’. For Paine, the American
Revolution was the moment and the place ‘where the principles of universal ref-
ormation could begin’.¹ Specifically, the revolution marked the beginning of the
end of regimes of monarchical government based on military objectives,² and its
replacement with government ‘founded on a moral theory, on a system of univer-
sal peace, on the indefeasible hereditary Rights of Man’.³ Whereas monarchical
government was founded on hierarchy, the legitimating principle of the newly
emerging regimes was that of equality. Government legitimated by divine will
or sacred custom stood opposed by government authorized by the consent of free
and equal citizens.
The guiding principles of this ‘universal reformation’ were based on claims
that the individual was the possessor of inherent natural rights, that the office
of government was instituted to ensure the maintenance and full enjoyment of
these rights, and that the main method of safeguarding them in the civil state was
through the device of a written constitution specifying the terms of the bargain
between rulers and ruled. ‘Man did not enter into society to become worse than
he was before, nor to have fewer rights than he had before’, argued Paine, ‘but to
have those rights better secured’.⁴ The modern regime of government that Paine
was proclaiming was firmly founded on the ‘rights of man’.
In this chapter, the influence of the idea that the modern system of govern-
ment exists to protect the interests of the rights-bearing individual is examined.
¹ Thomas Paine, Rights of Man [1791–1792] in his Rights of Man, Common Sense and other
Political Writings Mark Philp (ed) (Oxford: Oxford University Press, 1995), 83–331, 210.
² Of monarchical government, Paine, ibid, 212, noted: ‘War is their trade, plunder and revenue
their objects’.
³ Ibid, 213. ⁴ Ibid, 119.
How, in particular, are these basic rights given institutional status through the
constitutional arrangements of the modern state?
I. Natural Rights, Civil Rights, Constitutional Rights
The initial question is: whence come these ‘inherent’ rights? The question itself
reveals the origins of these rights in a tradition of natural law thought. Although
the period since the Second World War is one in which the language of ‘human
rights’ has played an increasingly significant role in political debate, it is impor-
tant also to recognize that, when placed in the context of the history of European
political thought, the periods in which rights theories have flourished ‘are freakish
and fitful’.⁵ Nonetheless, these theories have also ‘cast a powerful spell as an alter-
native to our own settled and gentler theories’ of government.⁶ For the purpose of
highlighting the impact of rights-based claims on constitutional arrangements, I
propose to compare the analyses of Paine and Rousseau, eighteenth-century writ-
ers whose ideas flowed from the influence of natural rights-based arguments of
their seventeenth-century forebears.⁷
Paine argues that with the transition from the state of nature to the social
state, the natural rights that vest in the individual are converted into civil rights.
Whereas natural rights are ‘those which appertain to man in right of his exist-
ence’, civil rights are ‘those which appertain to man in right of his being a mem-
ber of society’. Natural rights, provide the foundation of civil rights: every civil
right ‘has for its foundation, some natural right pre-existing in the individual,
but to the enjoyment of which his individual power is not, in all cases, sufficiently
competent’.⁸
The civil power is therefore ‘made up of the aggregate of that class of the nat-
ural rights of man, which becomes defective in the individual in point of power,
and answers not to his purpose; but when collected to a focus, becomes compe-
tent to the purpose of every one’. But that civil power ‘produced from the aggre-
gate of natural rights, imperfect in power in the individual’, Paine emphasizes,
‘cannot be applied to invade the natural rights which are retained in the individ-
ual, and in which the power to execute is as perfect as the right itself’.⁹ Natural
rights thus persist in the social state, and the civil power erected to ensure their
better protection acquires control over only so much of those rights that cannot
be fully enjoyed without their first being collectivized and converted into civil
rights accorded by the civil power.
⁵ Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge
⁶ Tuck, ibid. Cf CB Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke
(Oxford: Clarendon Press, 1962).
⁷ See above ch 2, 73–83. ⁸ Paine, above n 1.
⁹ Ibid, 120.
344 Constitutional Rights
The terms of this conversion, Paine explains, are specified in the constitution,
which is an act of delegation by the people. The constitution, then, should indi-
cate—whether explicitly or implicitly—those natural rights which are retained
by the individual and in this way the limits of authority of the office of gov-
ernment can be determined. The constitution should also specify the terms and
conditions on which the aggregation of natural rights can be converted into civil
rights. In the process of doing so, the constitution will also indicate the nature of
civil obligations, being those limitations designed to ensure the maximization of
the sum total of rights within the regime.
Paine’s scheme explicates in a straightforward manner the concepts of natural
rights and civil rights. But it makes no mention of a concept that has become the
common currency of modern constitutional regimes. This is the concept of con-
stitutional rights. Where, it might be asked, does the concept of constitutional
rights fit within this universal reformation?
Some might argue that the term should be reserved for that category of natural
rights that are retained by the people when the constitution of government is
devised. This would suggest that the term refers to that limited class of natural
rights that, not being pooled, are retained as a type of ‘pre-political’ right which
defines the boundaries of a zone of private autonomy, and which thereby becomes
a set of rights that are constitutive of the public sphere. This, however, seems to be
altogether too restrictive, not least because it is extremely difficult to determine at
the outset those rights that can never become matters of public interest.
But if that specification is too narrow, it is evident that the term cannot be a
synonym for civil rights—for all those rights that are created as a consequence
of the pooling of natural rights in the civil state. If it were, the concept of con-
stitutional rights would be synonymous with all the legal rights created through
the ordinary processes of law-making by the constituted authority, and would be
devoid of any precise meaning. Is the term, then, one that has to be reserved for
a bundle that combines those retained natural rights with those civil rights that
together are somehow taken to be fundamental to the constitution of the office
of government? If so, it exhibits a logical division between those that derive from
natural rights, which are absolute, and those that flow from fundamental civil
rights, which remain qualified. But perhaps the term should apply only to the
list of rights that are enumerated in the new type of document—the charters of
fundamental rights and freedoms—which have generally accompanied the con-
struction of written constitutions.
The most obvious solution within Paine’s scheme is to designate as constitu-
tional only those rights that are posited in modern bills of rights. Such formal
declarations lay down a basic platform of individual rights that governments
must respect. This definition is not without its difficulties; specifically, that being
products of time, place, and circumstance, these declarations may fail fully to
capture all the essential elements of the rights settlement in the constitution of
government. Nevertheless, formal declarations of rights are the most obvious
starting point for undertaking an inquiry into the nature and purpose of consti-
tutional rights.
Before turning directly to this novel feature of modern constitutional settle-
ments, it might be instructive to compare Paine’s analysis with that of Rousseau,
whose ideas shaped the thought of many of the French revolutionaries. In con-
trast to Paine, Rousseau had argued that the trade of natural rights for civil rights
with the transition to the civil state involved no simple transfer or pooling: rather,
it was utterly transformative. For Rousseau, natural rights in a state of nature are
capacities driven by appetite and the necessity of self-preservation, whereas the
transition to the civil state ‘produces a remarkable change in man by substituting
justice for instinct in his conduct, and endowing his actions with the morality
they previously lacked’. What is lost in the transition is ‘an unlimited right to
everything that tempts him and he can reach; what he gains is civil freedom and
property in everything he possesses’. Natural rights are limited by what a person
can hold on to; civil rights are limited by ‘the general will’.¹⁰
In Rousseau’s account, the transition to the civil state involves the complete
extinguishment of natural right; this is a precondition for the establishment of
sovereignty. But since, within Rousseau’s scheme, the sovereign is the people,
the exercise entails the creation of a sovereign without subjects. Rousseau’s con-
cept of sovereignty is constituted by a group of individuals acquiring their sta-
tus as equals only by virtue of the political pact. As equal citizens they become
the bearers of equal rights, which civil rights are defined and protected by law.
Further, the limits to these civil rights, being defined by the general will, are not
imposed from above by command, but are determined horizontally: the limit to
the exercise of civil rights is determined by the necessity of according an equal
liberty for all.
Rousseau’s scheme differs in important respects from Paine’s. It does not, for
example, acknowledge the continued existence of any pre-political rights: all
claims of natural right are extinguished in the political pact. Civil rights are cre-
ated as a result of the establishment of political order through that basic pact;
indeed, political order is conceived by Rousseau in The Social Contract as being
itself a form of juridical order—the product of the aggregation of subjective civil
rights. It is an explicit feature of Rousseau’s work that within political order there
can be no such thing as inalienable rights. All rights remain conditional to the
extent that they are limited by the necessity of obtaining the realization of an
equal right of all. Furthermore, since sovereignty means nothing other than the
exercise of the general will, and since sovereignty cannot be bound by any consti-
tutional law established to regulate the office of government, it would appear that
in the strict sense there can be no fundamental constitutional rights. Basic rights
¹⁰ Rousseau, ‘The Social Contract’ in his The Social Contract and other later political writings V
Gourevitch (trans) (Cambridge: Cambridge University Press, 1997), Bk I, ch 8, 53–54. See the
discussion in ch 4 above, 112–117.
in the constitutional settlement might bind particular elements of government,

but cannot impose restraints on the exercise of the general will.
In the frame of Rousseau’s thought constitutional rights cannot mean those
intrinsic natural rights that are retained in civil society, for the obvious reason
that none persists. Constitutional rights can be designated as part of a constitu-
tional settlement and will be binding on the constituted authority. But Rousseau
makes it clear that although a sovereign body can establish a constitution of
government, that constitution cannot bind the sovereign itself. Since the people
remain free to alter the constitution of government, any statement of constitu-
tional rights must remain conventional and amendable by the constituent power
of the people.
These differences in the formulations of Paine and Rousseau can help us to
appreciate the ambiguous character of the claims made of constitutional rights.
They are presented in their most stark form when the question is asked: to what
do these rights claim to be constitutive of? They may, of course, be constitutive
of the office of government. Aspects of Paine’s argument suggest this to be the
case, especially with respect to the natural rights that are retained within civil
order. But if such rights simply establish general civil rights that are limited by
alternative competing claims of rights, then they would appear to be regulative
rather than constitutive conditions, not least because it will generally be left to
the constituted authorities to determine those limits. And, most controversially,
to what extent can these natural or civil rights be deemed to be constitutive of the
public sphere itself?
II. Civil Society
Before taking further the question of specification of the concept of constitu-

tional right, it is necessary first to consider an important question on which the
views of Rousseau and Paine differ. This is the question of how the public sphere
itself should be characterized. Whereas Rousseau continues to speak in the lan-
guage of sovereignty, it is evident that Paine is seeking to move beyond that con-
cept. Although, when arguing in defence of French revolutionary principles,
Paine occasionally refers to sovereignty as appertaining to the entire nation,¹¹ he
evidently believes that the universal reformation would result in a radical shift in
nature of modern political discourse—and that the concept of sovereignty could
no longer stand as an adequate representation of the public sphere.
This reformation was being driven by natural laws of social development. In
Paine’s world view, natural law ideas are not given practical effect in govern-
mental regimes because of the action of some revolutionary vanguard; the ideas
¹¹ See, eg, Paine, above n 1, 140, 193. Art III of the French Declaration of the Rights of Man
and the Citizen, 1789, stated: ‘The Nation is essentially the source of all Sovereignty’.
have force essentially because they express the workings of these natural laws
of development. Natural law, in other words, ‘does not gain its validation sub-
jectively through the consciousness of politically active citizens’; it achieves this
objectively ‘through the effect of the uninhibited workings of society’s imma-
nent natural laws’.¹² Building on the natural jurisprudence of Adam Smith,
Paine argues that the workings of ‘society’s immanent natural laws’ is leading to
the opening-up of trade and commerce and, in its train, the formation of what
might be called ‘civil society’.¹³
This argument is made most explicit in the first chapter of the second part of
Rights of Man, entitled ‘Of Society and Civilization’. Paine here remarks that the
‘great part of that order which reigns among mankind is not the effect of gov-
ernment’ but has its origins in ‘the principles and natural constitution of man’.
This order predates government and would continue to exist even ‘if the formal-
ity of government was abolished’, because human interdependence and recipro-
cal interest form a ‘chain of connection’ which holds together all the parts of
civilized community. It is through the workings of these natural laws—rather
than because of any political pact—that humans were led into society: ‘Common
interest regulates their concerns, and forms their law; and the laws which com-
mon usage ordains, have a greater influence than the laws of government’.¹⁴
Paine here substitutes the standard distinction in social contract theory
between the state of nature and the civil state with a distinction between soci-
ety and government. It is society rather than government that elevates mankind.
Government ‘makes but a small part of civilized life’, and it is ‘to the great and
fundamental principles of society and civilization . . . infinitely more than to any
thing which even the best instituted government can perform, that the safety and
prosperity of the individual and of the whole depends’. As civilization evolves,
government dissipates: civil society is now able to regulate its own affairs and to
govern itself.¹⁵ In an earlier essay, Common Sense, Paine was even more forthright
about this distinction. There, he claims that society is ‘produced by our wants’,
whereas government ‘by our wickedness’; that society promotes happiness posi-
tively ‘by uniting our affections’, whereas government promotes it negatively ‘by
restraining our vices’; and that society is ‘in every state a blessing’, whereas gov-
ernment is ‘but a necessary evil’.¹⁶
¹² Jürgen Habermas, ‘Natural Law and Revolution’ in his Theory and Practice John Viertel
(trans) (Boston: Beacon Press, 1973), 82–120, 94.
¹³ Adam Smith, The Theory of Moral Sentiments [1759] Knud Haakonssen (ed) (Cambridge:
Cambridge University Press, 2002); Smith, An Inquiry into the Nature and Causes of the Wealth
of Nations [1776] E Cannan (ed) (London: Methuen, 1904); Knud Haakonssen, The Science of a
Legislator: The Natural Jurisprudence of David Hume and Adam Smith (Cambridge: Cambridge
University Press, 1981); Haakonssen, Natural Law and Moral Philosophy: From Grotius to the
Scottish Enlightenment (Cambridge: Cambridge University Press, 1996); Istvan Hont and Michael
Ignatieff (eds), Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment
(Cambridge: Cambridge University Press, 1983), esp ch 1.
¹⁴ Paine, above n 1, 214. ¹⁵ Ibid, 216.
¹⁶ Thomas Paine, Common Sense [1776] in Paine, above n 1, 1–59, 5.
Building on the work of Locke and Smith, Paine seeks to bring natural law
into alignment with the laws of trade and commodity exchange. ‘All the great
laws of society’, Paine proclaims, ‘are laws of nature’. But these, it must be empha-
sized, are laws of a different order. These natural laws are obeyed not because they
are commands backed by sanctions, but because it is in the individual’s interest to
follow them: the laws of trade and commerce ‘are laws of mutual and reciprocal
interest’.¹⁷ Paine here charts the way in which the development of these natural
(social) laws is leading to a reconfiguration of the relationship between society
and government. Society, not government, represents the public interest, and
government acts legitimately only when promoting society’s interests.¹⁸ Paine
therefore claims that the emerging new regime of government—that of which
the American republic provides the model¹⁹—‘promotes universal society, as the
means of universal commerce’.²⁰
In The Social Contract, Rousseau had argued that there exists a special type of
law on which the success of all the others depends and which forms ‘the State’s
genuine constitution’: this is the living law, expressive of the customs and beliefs
of the people.²¹ Paine replaces Rousseau’s customs with the natural laws of trade
and commerce. But whereas Rousseau places custom within the overarching
frame of sovereignty, Paine seeks to move beyond sovereignty as a representation
of the autonomy of the public sphere and to replace it with the separate spheres
of society and government. It might even be said that Paine seeks to replace the
unity of the political with that of the social. Habermas puts this point well: ‘The
confrontation of the spontaneous forces of societal cohesion and self-regulation
with the formal means of coercion of a repressive state power anticipates a con-
ception of society as a living totality, which only accords validity to the state
[sc. government] as one element split off from the whole, a particularity that has
made itself independent’.²²
Paine’s argument marks the emergence of civil society as the paramount force
in the public sphere. The universal reformation that he envisages goes hand-in-
hand with a limited role for government, and this is a limited role which is to be
defined in its constitution. ‘In the representative system’, he argues, ‘the reason for
every thing must publicly appear’.²³ This observation presents us with the clue to
understanding the nature of constitutional rights. Constitutional rights in Paine’s
schemes are those rights enumerated in written constitutions—the rights of life,
¹⁷ Paine, above n 1, 216.

¹⁸ Ibid, 230: ‘Every government that does not act on the principle of a Republic, or in other
words, that does not make the respublica its whole and sole object, is not a good government.
Republican government is no other than government established and conducted for the interest of
the public, as well individually as collectively’.
¹⁹ Ibid, 231, 232–233: ‘the government of America, which is wholly on the system of represen-
tation, is the only real republic in character and in practice that now exists. . . . It is on this system
that the American government is founded. It is representation ingrafted upon democracy’.
²⁰ Ibid, 223. ²¹ See above ch 5, 133–134.
²² Habermas, above n 12, 95. ²³ Paine, above n 1, 237.
liberty, and property—which exist to protect the operation of the natural laws of
the commercial republic from undue political interference by government.
Although Paine’s analysis provides us with a clear account of the nature of con-
stitutional rights, his account is tied to a controversial argument about the nature
of civil society. The critical question is whether or not civil society is able to offer
an adequate expression of public reason. To this question, Hegel gave a robust
answer. While acknowledging the emergence of civil society and the power of
its laws—the laws of political economy devised by Smith, Say, and Ricardo—to
meet particular social needs,²⁴ Hegel also recognized that, far from addressing
the natural inequality of man, these laws had the effect of reinforcing them.
Hegel argues that the workings of civil society ‘have as their inevitable conse-
quence disparities of individual resources and abilities’ and, ‘far from annulling
this natural inequality’, they raise these to ‘an inequality of skill and resources,
and even to one of moral and intellectual attainment’.²⁵ In such circumstances, he
suggests, civil society can express only particularistic interests, and forms a sphere
of conflict and antagonism. Contrary to Paine’s claim that the rise of civil society
will lead to a diminution in the power of government, Hegel demonstrates that
this reformation would lead to governments assuming a much greater role in the
regulation of social life: ‘The differing interests of producers and consumers may
come into collision with each other; and although a fair balance between them on
the whole may be brought about automatically, still their adjustment also requires
a control which stands above both and is consciously undertaken’.²⁶ Since the
operation of the natural laws of civil society lead to disequilibrium and disorgani-
zation, civil society stands in particular need of regulation by government.
The theme that the rise of civil society leads not to the withering away of gov-
ernment but to its extension is taken up in Part V of the book. Here, however, my
main concern is with the ways in which civil society manifests itself as an expres-
sion of natural right that shapes the relation between society and government.
Hegel’s argument is that civil society, which is concerned specifically with ‘the
security and protection of property and personal freedom’, should not be con-
fused with the state and its aim of achieving objective freedom.²⁷ Civil society
is the sphere of public opinion and, although deserving of respect as a concrete
expression of beliefs and interests, it has in itself ‘no criterion of discrimination,
nor has it the ability to extract the substantive element it contains and raise it
to precise knowledge’.²⁸ Once civil society is left to operate according to its
own laws—or, as Hegel expresses it, ‘the more blindly it sinks into self-seeking
²⁴ GWF Hegel, Philosophy of Right [1821] TM Knox (trans) (Oxford: Oxford University Press,
1952), §189. On its logic, Hegel states (§246): ‘This inner dialectic of civil society thus drives it—or
at any rate a specific civil society—to push beyond its own limits and seek markets, and so its
necessary means of subsistence, in other lands which are either deficient in the goods it has over-
produced, or else background in industry etc’.
²⁵ Ibid, §200. ²⁶ Ibid, §236. ²⁷ Ibid, §258. ²⁸ Ibid, §318.
aims’—then the more urgent becomes the need for public controls ‘to diminish
the danger of upheavals arising from clashing interests’.²⁹
In Habermas’ assessment, ‘Hegel took the teeth out of the idea of the public
sphere of civil society; for anarchic and antagonistic civil society did not consti-
tute the sphere, emancipated from domination and insulated from the interfer-
ence of power, in which autonomous private people related to one another’.³⁰
Hegel’s analysis gives a different twist to Paine’s argument about the constitu-
tionalization of civil society. If we are to understand constitutional rights as that
special category of rights that protects the subjective freedoms exercised in civil
society, Hegel appears to be saying that they are likely to serve mainly as barriers
against the realization of objective freedom.
III. Bills of Rights
The ambivalent effects of the working of these natural laws of development on

our understanding of the nature of the public sphere carries through to the man-
ner in which the office of government was to be re-constituted in accordance with
revolutionary principles. This is made manifest with respect to the status of a new
device that emerges as a common feature of modern constitutional government—
that of the charter of citizens’ rights that forms part of the new constitutional
settlement. It is primarily by means of this device that the principles of natural
right were transformed into principles of the constitution: charters of rights con-
verted natural rights into constitutional rights. But being novel, the meaning,
status, and impact of such bills of rights remained uncertain. These uncertainties
can best be examined by comparing the American and French experiences.
Perhaps the most striking fact is that bills of rights were not initially conceived
as being of central constitutional significance. In the latter half of the eighteenth
century, they were assumed mainly to be general declarations of political claim,
a statement of the essential political principles that governmental authorities
should acknowledge and respect. The modern understanding of such formula-
tions of rights as being legally binding and judicially enforceable documents of
primary constitutional importance arises only as a product of subsequent experi-
ence.³¹ This fact affects the manner of their formulation.
²⁹ Ibid, §236. See also the analysis of Karl Marx, ‘On The Jewish Question’ [1844]: <http://
www.marxists.org/archive/marx/works/1844/jewish-question/>.
³⁰ Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a
Category of Bourgeois Society Thomas Burger (trans) (Cambridge, MA: MIT Press, 1989), 123. See
also Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society
(Cambridge, MA: MIT Press, 1988) (arguing that the emergence of the enlightenment idea that
‘society’ formed a non-political space which opened the possibility of a utopian future of all man-
kind not only marked the beginning of anti-political thinking but also laid the foundations of
modern totalitarianism).
³¹ See above ch 10, 288–296.
During the course of the American Revolution, all but two of the 13 states
drafted new constitutions and of those 11, eight issued some form of declaration
of rights. The institutional practice was not systematic, which is not surprising
since ‘their function was less to establish rules regulating the workings of govern-
ment than to remind both the people and public officials of the basic principles
by which government should conduct its affairs’.³² The case of Virginia is instruc-
tive: ‘the Provincial Convention approved the Declaration of Rights more than
a fortnight before it adopted the constitution; neither document referred to the
other; nor was it even clear that contemporaries regarded the Declaration as part
of the constitution’.³³ It might also be noted that the Federal Constitution of
1787 contained no charter of rights; this was only proposed two years later, in the
form of 10 Amendments to the Constitution.
It is generally accepted that the adoption of the American Bill of Rights in
1791 owed more to political exigency than to any intention of perfecting the
constitutional arrangement; the Bill of Rights was simply the price that had to
be paid to ensure that the anti-federalists would ratify the Constitution. The
pivotal figure in this process was Madison. Madison had initially expressed con-
siderable scepticism about placing trust in what he called ‘parchment barriers
against the encroaching spirit of power’ and had relied instead on the estab-
lishment of an institutional arrangement of ‘balances and checks’.³⁴ He ‘saw
little evidence that the state declarations of rights had any efficacy in securing
their avowed objects’, since they had failed to curb the actions of state legisla-
tures and ‘had done nothing to brake the factious passions swirling among the
people at large’.³⁵ And he expressed concern that if an incomplete list of rights
were drafted, it might suggest that those which had been overlooked could be
ignored.³⁶ Although Madison’s conversion was largely born of political neces-
sity, he did recognize that a bill of rights might possess some potential to curb
the tyranny of transient majorities and, through its symbolic effects, assist in
the formation of an informed public, which is a vital precondition of republican
government.³⁷
In comparison to the state bills of rights, the 10 Amendments were drafted
in mundane language. There is no grand appeal to the inherent natural rights of
the people, no general statement of principles and purposes; rather, they present
³² Jack N Rakove, Declaring Rights: A Brief History with Documents (Boston: Bedford Books,
1998), 37.
³³ Ibid, 36.
³⁴ James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 48 (at 309), No 10 (at 119).
³⁵ Jack N Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New
York: Vintage Books, 1997), 316.
³⁶ Rakove, above n 32, 144.
³⁷ Wilfrid E Rumble, ‘James Madison and the Value of Bills of Rights’ in J Roland Pennock
and John W Chapman (eds), Constitutionalism: Nomos XX (New York: New York University
Press, 1979), 122–162; Stuart Leibiger, ‘James Madison and Amendments to the Constitution,
1787–1989, “Parchment Barriers”’ (1993) 59 Journal of Southern History 441–468.
themselves as ‘a set of spare commands presupposing that the people already

knew what the moral purposes and ultimate sources of their rights were’.³⁸ The
American Bill of Rights is far from being an expression of the fundamental rights
of a new regime of constitutional government that would sweep the world. It
merely reduces to writing the basic liberties possessed by the English subject at
common law and the last two Amendments, being without evident purpose, seem
to vindicate Madison’s concern about the ability of drafters properly to specify
the essentials.³⁹
The Amendments were, however, drafted in an imperative rather than norma-
tive style (‘shall’ rather than ‘ought’), and this enhanced the prospect of their
being treated as justiciable claims.⁴⁰ Nevertheless, as Rakove notes, ‘for the better
part of a century and a half, the Bill of Rights had little effect on the course of
American law and politics’ and it was only in the twentieth century that the Bill
of Rights (alongside the Fourteenth Amendment) began to establish itself as an
important element of the US Constitution.⁴¹
The French experience was different; whereas the American Bill of Rights
arrived as amendments to an already adopted Constitution, the French
Declaration of the Rights of Man and the Citizen of 1789 is a freestanding
claim that preceded the drafting of the new French Constitution and laid
down the platform of basic rights on which the new Constitution was to
be based. Notwithstanding the similarities in formulation between the
American Declaration of Independence and some of the state bills of rights,
on the one hand, and the French Declaration, on the other,⁴² the latter was
radically different in purpose and impact. Although Paine in Rights of Man
treated the American and French Revolutions as common movements based
on a common rendition of the claims of natural right, this was not strictly the
case. While the Americans sought only to overthrow the imperial power and
establish the independence of the former colonies, the French used the claims
of natural right to undermine the entire edifice of the old regime, to carry
through a social as well as political revolution, and to extend the force of these
claims throughout the European continent. It is therefore not surprising
³⁸ Rakove, above n 32, 192.

³⁹ Art 9 states that the enumeration of certain rights in the Constitution ‘shall not be construed
to deny or disparage others retained by the people’. Art 10 states that powers not delegated to the
national government are either reserved to the states or to the people.
⁴⁰ Madison acknowledged this for the first time in a speech of 8 June 1789, in which he stated
that if a declaration of rights was incorporated into the Constitution ‘independent tribunals of
justice will consider themselves in a peculiar manner the guardians of those rights; they will be
an impenetrable bulwark against every assumption of power in the legislative or executive’. See,
Rakove, above n 35, 335.
⁴¹ Rakove, above n 32, 194.
⁴² See the classic essay of Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A
Contribution to Modern Constitutional History Max Farrand (trans) (New York: Henry Holt & Co,
1901); Duncan Kelly, ‘Revisiting the Rights of Man: Georg Jellinek and the State’ (2004) 22 Law
and History Review Issue 3: <http://www.historycooperative.org>.
that Robespierre claimed that the ‘French Revolution is the first which is based
on the doctrine of the Rights of Man and on the principles of justice’.⁴³
The Declaration of the Rights of Man and the Citizen might have borrowed
its language from the American documents but it performed a rather different
constitutional function. The Declaration, drafted mainly in the normative mode,
did contain a catalogue of individual rights, including liberty according to law
(Article 7), the presumption of innocence (Article 9), freedom of expression
(Articles 10, 11), and the right to property (Article 17). But it went far beyond the
enunciation of individual rights: the Declaration did nothing less that attempt
to lay down the basic principles on which both society and government must be
founded. Consider the following articles:
1. Men are born free, and always continue, free and equal in respect of their rights. Civil
distinctions, therefore, can be founded only on public utility.
2. The end of all political associations is the preservation of the natural and imprescrip-
tible rights of man; and these rights are liberty, property, security, and resistance to
oppression.
3. The nation is essentially the source of all sovereignty; nor can any individual, or any
body of men, be entitled to any authority which is not expressly derived from it.
4. Political liberty consists in the power of doing whatever does not injure another. The
exercise of the natural rights of every man has no other limits than those which are
necessary to secure to every other man the free exercise of the same rights; and these
limits are determinable only by the law.
5. The law ought to prohibit only actions hurtful to society. . . .
6. The law is an expression of the will of the community. All citizens have a right to con-
cur, either personally or by their representatives, in its formation. . . .
15. Every community has the right to demand of all its agents an account of their
conduct.
16. Every community in which a separation of powers and a security of rights is not pro-
vided for, wants a constitution.
While the Americans in their Bill of Rights effectively reduced to writing the
common law inheritance, the structure of the French Declaration made a clear
distinction between rights and law. Law in the Declaration meant positive law,
those rules made by the constituted legislative body to regulate society. The
Declaration did not make any appeal to law as custom or cultural inheritance; it
simply proclaimed the state’s ability to govern itself through the instrumentality
of law and in accordance with a set of principles that operate to maximize the
liberty and equality of all.
By virtue of the course of development of the Revolution, the Declaration
principles were raised to the status of foundational principles of society and gov-
ernment. In this light, they should be treated as attempts to prescribe nothing
less than the guiding principles of the constitution of the state. The Declaration
⁴³ Cited in Habermas, above n 12, 291 (n 9).

must be read as the charter of freedom. Hegel had recognized this significance
when he commented of the Revolution that ‘a constitution . . . was established
in harmony with the conception of Right, and on this foundation all future
legislation was to be based’. Its singular character was acknowledged in his
claim that: ‘Never since the sun had stood in the firmament and the planets
revolved around him had it been perceived’.⁴⁴ For Hegel (in Bloom’s summation
of Kojève’s interpretation), ‘the enunciation of the universal, rational principles
of the rights of man in the French Revolution marked the beginning of the end
of history’.⁴⁵ The claim being made here is that the Declaration principles are
the only viable principles of the modern political realm and the main task for the
future is to realize—across the entire world—a state in which these principles
have become fully operational.
But this is some task. In the Phenomenology of Spirit, Hegel addresses the criti-
cal problem under the heading of ‘absolute freedom and terror’.⁴⁶ Unpacking
his high-flown philosophy, his argument is that the ideas driving the French
Revolution flow from Rousseau’s philosophy, a philosophy grounded in a loss of
community and its replacement with isolated individuals who can conceive the
state only as a construction of the mind. It is from this ‘inner revolution’, argues
Hegel, that there emerges ‘the actual revolution of the actual world, the new
shape of consciousness, absolute freedom’.⁴⁷ And in this world of absolute free-
dom, in which ‘all social groups or classes . . . are abolished’, the realization of the
general will requires that all limitations be put aside: ‘its purpose is the general
purpose, its language universal law, its work the universal work’.⁴⁸ For Hegel, it is
the abstract character of its universal principles that marks its undoing. When the
claim of absolute freedom is made, there can be no mediating authority, whether
between principles, between expressions of principles, or between government
and people. Nothing positive can come from this process: ‘there is left for it only
negative action; it is merely the fury of destruction’.⁴⁹
Developing this argument in Philosophy of Right, Hegel explains that the
claims being made by the abstract principles of the Declaration ‘is the free-
dom of the void’, which, when it manifests itself in politics, takes shape as ‘the
fanaticism of destruction—the destruction of the whole subsisting order—as the
elimination of individuals who are objects of suspicion to any social order, and
the annihilation of any organization which tries to rise anew from the ruins’.⁵⁰
During the Terror in the French Revolution, he elaborates, ‘all differences of
talent and authority were supposed to have been superseded’; it was a period
⁴⁴ GWF Hegel, Philosophy of History J Sibree (trans) (New York: Dover, 1956), 447.
⁴⁵ Allan Bloom, ‘Introduction’ to Alexandre Kojève, Introduction to the Reading of Hegel James
R Nichols (trans) (Ithaca: Cornell University Press, 1969), vii–xii, xi.
⁴⁶ GWF Hegel, Phenomenology of Spirit AV Miller (trans) (Oxford: Oxford University Press,
1977), 355–363.
⁴⁷ Ibid, 356 (emphasis in original). ⁴⁸ Ibid, 357.
⁴⁹ Ibid, 359 (emphasis in original). ⁵⁰ Hegel, above n 24, §5R.
of ‘irreconcilable hatred of everything particular’.⁵¹ For this reason we see that
the revolutionaries ‘destroyed once more the institutions which they had made
themselves, since any institution whatever is antagonistic to the abstract self-con-
sciousness of equality’.⁵² States conceived as expressions of general and universal
principles cannot sustain themselves.
Hegel recognized that the ‘freedom constitutive for European world history
is raised to the principle of all political and legal order by the Revolution’; he
accepted that it is ‘no longer possible to retreat from this principle’ and that this
‘new-won universal principle of all law . . . cannot be restricted’.⁵³ In this respect
he differed from Burke who, though similarly critical of abstract reason, sought
to defend a state based only on monarchical or aristocratic precepts.⁵⁴ Hegel also
differed in his analysis of the principles of the Declaration from Bentham, who
simply converted its normative claims into empirical statements for the purpose
of dismissing them as being nonsensical.⁵⁵ Unlike Bentham, Hegel recognized
the dialectic in operation between right and law, and, unlike Burke, did not
oppose history to reason, but sought instead to ascertain the reason in history.
Hegel acknowledged the remarkable achievement of the French Revolution in
seeking to re-order the state on rational principles,⁵⁶ but argued that states are
not slaves to abstract constitutive principles. His philosophy embraces the pos-
sibility—often necessity—of revolution, while simultaneously recognizing the
necessity of maintaining the state.
The French Declaration and the American Bill of Rights form the polarities
around which consideration of the question of constitutional rights revolves.
Are constitutional rights a set of principles designed to regulate the established
⁵¹ Ibid, §5A. ⁵² Ibid.

⁵³ Joachim Ritter, Hegel and the French Revolution Richard Dien Winfield (trans) (Cambridge,
MA: MIT Press, 1982), 52–53.
⁵⁴ Edmund Burke, Reflections on the Revolution in France [1790] Conor Cruise O’Brien
(ed) (London: Penguin, 1986). See J-F Suter, ‘Burke, Hegel, and the French Revolution’ in ZA
Pelczynski (ed), Hegel’s Political Philosophy: Problems and Perspectives (Cambridge: Cambridge
⁵⁵ Jeremy Bentham, Anarchical Fallacies; being an examination of the Declaration of Rights issued
during the French Revolution [c1795] in Jeremy Waldron (ed), Nonsense on Stilts: Bentham, Burke
and Marx on the Rights of Man (London: Methuen, 1987), 46–76, eg, at 49: ‘All men are born free?
All men remain free? No, not a single man: not a single man that ever was, or is, or will be. All men,
on the contrary, are born in subjection, and the most absolute subjection—the subjection of a help-
less child to the parents on whom he depends every moment for his existence’.
⁵⁶ In one of his last essays, on the state of the English constitution at the time of the Reform Act,
Hegel noted the ‘character of “positivity” which preponderates in the institutions of English law,
public and private alike [Staatsrecht und Privatrecht]’ and which dictates that ‘every right and its
corresponding law is in form something positive, ordained, and instituted by the supreme power
in the state, something to which obedience must be given just because it is a statute’. But, he con-
tinued, ‘this inherently disconnected aggregate of positive provisions has not yet undergone the
development and recasting which has been carried out in the civilized states of the Continent’,
and England has thus ‘lacked the features which constitute the major part of these glorious and
fortunate advances’, chief of which ‘is the scientific remodelling of law [Recht]’: GWF Hegel, ‘The
English Reform Bill’ [1831] in his Political Writings TM Knox (trans) (Oxford: Clarendon Press,
1964), 295–330, 299–300.
office of government (the basis of the American Bill of Rights) or are they a set of
principles that are designed to express the legitimate foundation on which gov-
ernment can itself be established (the claim of the French Declaration)? Arendt
puts the point well when she suggests that the ‘whole matter is so easily and fre-
quently confused because of the important part the Declaration of the Rights of
Man and the Citizen came to play in the course of the French Revolution, where
these rights indeed were assumed not to indicate the limitations on all lawful
government, but on the contrary to be its very foundation’.⁵⁷ With respect to
the American experience, it was the ‘fever of constitution-making which gripped
the country immediately after the Declaration of Independence’ that prevented
‘the development of a power vacuum’ and enabled governmental authority to be
established on a foundation other than ‘what had always been essentially a nega-
tive on power, that is, the bills of rights’.⁵⁸
Instead of the grand declaration that ‘all men are born equal’, a claim which
Arendt notes was ‘fraught with truly revolutionary implications in a country
which was still feudal in social and political organization’,⁵⁹ the American rights
claim was more modest in content and scope. Although it sought only to codify
‘the rights of Englishmen’, the rights claim was at the same time proclaiming
that those rights should be enjoyed by all citizens regardless of ancestry: all citi-
zens have the right to live freely under constitutional government. In contrast to
the American claim that all should live under a form of constitutional govern-
ment that respects individual rights, the French version ‘proclaims the existence
of rights independent of and outside the body politic, and then goes on to equate
these so-called rights, namely the rights of man qua man, with the rights of citi-
zens’.⁶⁰ Arendt’s more specific concern was with ‘the perplexities inherent in the
very concept of human rights’ and of the ‘inefficacy of all declarations, proclama-
tions, or enumerations of human rights that were not immediately incorporated
into positive law’.⁶¹ The growing practice of drafting bills of rights as part of a
modern constitutional settlement not only highlights the tensions that exist in
the relationship between rights and law, but also plays a pivotal role in its subse-
quent transformation.
IV. Constitutional Adjudication
If Rousseau is the most influential theorist of the French Revolution, then

(argues Arendt) it is Montesquieu who exerts the greatest sway over the course
of the American Revolution. Turning to Montesquieu for instruction in ‘the
⁵⁷ Hannah Arendt, On Revolution (Harmondsworth: Penguin, 1973), 148.

⁵⁸ Ibid. ⁵⁹ Ibid. ⁶⁰ Ibid, 149.
⁶¹ Ibid. On which, see Hannah Arendt, The Origins of Totalitarianism (San Diego, CA: Harcourt
Brace Jovanovich, 2nd edn, 1968), 290–302.
constitution of political liberty’, the American colonists derived two important
lessons. The first was that when contemplating the constitution of liberty, the
word ‘constitution’ loses any connotation ‘of being a negative, a limitation and
negation of power’; instead, it means ‘that the “grand temple of federal liberty”
must be based on the foundation and correct distribution of power’.⁶² The second
concerns the nature of political power. Montesquieu not only believed that power
could only be checked by power; he also recognized that, properly deployed, the
technique of checking and balancing power leads not merely to a limitation but
to the generation of more power.⁶³ From this, argues Arendt, a more general dis-
tinction between the French and American experiences is to be drawn:
The men of the French Revolution, not knowing how to distinguish between violence
and power, and convinced that all power must come from the people, opened the polit-
ical realm to this pre-political, natural force of the multitude and they were swept away by
it, as the king and the old powers had been swept away before. The men of the American
Revolution, on the contrary, understood by power the very opposite of a pre-political
natural violence. To them, power came into being only when and where people would
get together and bind themselves through promises, covenants, and mutual pledges: only
such power, which rested on reciprocity and mutuality, was real power.⁶⁴
To put it succinctly: revolution requires constitution, power requires institution.
When Arendt claims that power checked is power enhanced, she is expressing a
form of institutionalized power that has been converted into authority. The con-
stitution, it might be said, founds not power but authority, just as ‘amendments to
the Constitution augment and increase the original foundations of the American
republic’.⁶⁵ With respect to these foundations, Arendt highlights an ambiguity
that exists in the concept of the constitution. Constitution can mean ‘the con-
stituting act . . . by which a people constitutes itself into a body politic’; but it can
also mean ‘the result of this act, the Constitution as a written document’.⁶⁶ From
this ambiguity she recognizes that the awe in which the American people hold
their constitution is similarly ambiguous, since ‘its object was at least as much the
act of constituting as it was the written document itself’.⁶⁷
Arendt’s argument about the constitution helps us understand one of the most
characteristic features of contemporary American constitutionalism, namely its
extreme legalism combined with its rights foundationalism. In the US system
not only do all important matters of politics tend invariably to convert them-
selves into constitutional questions, but all such constitutional questions present
themselves for resolution before the judiciary; and all such issues for constitu-
tional adjudication convert themselves into questions of constitutional rights.⁶⁸
⁶² Ibid, 150. ⁶³ See above ch 6, 167–170.

⁶⁴ Arendt, above n 57, 181. ⁶⁵ Ibid, 202. ⁶⁶ Ibid, 203. ⁶⁷ Ibid, 204.
⁶⁸ Cf Alexis de Tocqueville, Democracy in America [1835] Henry Reeve (trans) Daniel J Boorstin
(intro) (New York: Vintage Books, 1990), vol 1, ch 16, 280: ‘Scarcely any political question arises
in the United States that is not resolved, sooner or later, into a judicial question’.
The American system may be exceptional, but there is little reason to doubt that,
albeit in varying degrees, other constitutional regimes are following the lines of
its trajectory. Consideration of the rich literature it has spawned on the nature,
role, and limits of constitutional adjudication can therefore help us specify the
distinctive character of constitutional rights.
The most important point to note about the rights revolution in the United
States is how recent a phenomenon it is. Only after the First World War did the
Supreme Court start—and then only fitfully—to apply the provisions of the Bill
of Rights against the states. In 1938, flowing from the New Deal controversies, it
signalled a significant shift when indicating that, while it would defer to legisla-
tive action concerning economic regulation, it would engage in more intensive
scrutiny of such action impinging on personal liberty.⁶⁹ But the rights revolu-
tion itself is a post-Second World War phenomenon. The most important devel-
opments have been with respect to the practices of racial segregation;⁷⁰ voting
rights;⁷¹ the innovative extension of Bill of Rights protection to those accused or
convicted of crimes;⁷² the elaboration of rights protection to embrace personal
autonomy;⁷³ and the widening of the range of conduct subject to constitutional
protection with respect to freedom of speech, religion, press, and expression.⁷⁴
⁶⁹ US v Carolene Products Co 304 US 144, 152 (n 4) (1938).

⁷⁰ Brown v Board of Education 349 US 294 (1954).
⁷¹ Baker v Carr 369 US 186 (1962); Reynolds v Sims 377 US 533 (1964) (enforcing under the
equal protection clause the rights of individuals to have their districts represented in proportion
to their populations). It might be noted that the Baker case also marked a significant shift in the
court’s treatment of the ‘political question’ doctrine, the idea that certain constitutional questions
are inherently non-justiciable on the ground that they concern matters on which other depart-
ments of government or even the electorate should have the final say. Rejecting the court’s approach
in Cosgrove v Green 328 US 549 (1946), the Supreme Court in these cases asked only whether the
constitutional provision invoked (the equal protection clause) was capable of being translated into
judicially enforceable rights.
⁷² Mapp v Ohio 367 US 643 (1961) (extending to state criminal proceedings the federal rules
relating to exclusion of improperly obtained evidence); Gideon v Wainwright 372 US 335 (1963)
(establishing the right to counsel in criminal trials); Miranda v Arizona 377 US 201 (1966) (exclud-
ing confessions obtained from suspects not advised of their rights to remain silent and receive
counsel’s assistance).
⁷³ Griswold v Connecticut 381 US 479 (1965) (declaring a state law prohibiting the sale of con-
traceptives to be unconstitutional); Roe v Wade 410 US 113 (1973) (declaring a state law limiting a
woman’s right to obtain an abortion unconstitutional).
⁷⁴ From the many, see: New York Times Sullivan 376 US 254 (1964) (all defamation claims
against government officers must be subjected to strict scrutiny to ensure right to free speech not
infringed by official censorship); Stanley v Georgia 394 US 557 (1969) (state’s power to ban trade in
obscenity cannot extend to the restriction on the right to private possession of obscene material);
Cohen v California 403 US 15 (1970) (conviction for disturbing the peace by entering the court
wearing a jacket inscribed with the message ‘Fuck the Draft’ struck down as an interference with
freedom of speech); Wisconsin v Yoder 406 US 205 (1972) (state’s attempt to enforce compulsory
state education laws against the Amish community struck down as interference with right of free
exercise of religion); Lawrence v Texas 539 US 558 (2003) (state laws against homosexual sodomy
by consenting adults held unconstitutional on ground of breach of rights of privacy). The last, nota-
bly, explicitly overruled the Supreme Court’s decision in Bowers v Hardwick 478 US 186 (1986).
This post-war development has resulted in constitutional rights claims
becoming the most important and contentious aspects of the contemporary
US Constitution. In turn, it has led to a fundamental change occurring in the
role of the Supreme Court: whereas in the mid-1930s, fewer than 10 per cent of
the court’s decisions related to individual (non-property) rights claims, by the
late 1960s, almost 70 per cent of its decisions were concerned with individual
rights.⁷⁵ The Supreme Court has come to conceive itself as a constitutional court
and in that capacity to assume as its primary role that of guardian of the citizen’s
constitutional rights.
In the light of these rights developments it has been argued that although
Ackerman was right to identify the Founding and the Reconstruction as ‘con-
stitutional moments’, he may have been wrong with respect to the New Deal.
Adopting a rights perspective, Primus argues that the ‘rewriting of rights prin-
ciples that has had such great consequences in the last two generations is less a
product of the New Deal than of World War II and the years following’. That is,
notwithstanding the evident significance of the New Deal on the structure of
American politics and government, ‘the ideas that made possible the success of
the civil rights movement of the 1950s and 1960s are better understood as reac-
tions against adversaries of World War II and the years that followed, namely the
confrontation with totalitarianism in its Nazi and Soviet forms’.⁷⁶
On this argument, the post-war extension of constitutional rights in the United
States should be seen in the context of the emergence of a worldwide movement
that is promoting human rights and, in particular, advocates their institutionali-
zation in the constitutional frameworks of nation-states.⁷⁷ Viewed from this per-
spective, the otherwise singular debate that has raged amongst American jurists
concerning the origins, nature, and status of constitutional rights takes on a more
general significance. Underpinning the American debate on judicial review is the
search for a method by which the two basic ideas commonly invoked to legiti-
mate modern constitutional ordering—the claims of popular sovereignty and
respect for citizens’ rights—are capable of being reconciled.
In turning to the American scholarship for answers to this question, we must
nevertheless acknowledge the degree to which the debate over constitutional
judicial review retains its peculiar characteristics. It might be noted, for exam-
ple, that this issue has come to dominate debate among American jurists to such
a degree that the term ‘constitutional theory’ is now confined purely to the exer-
cise of proposing a theory which aims to guide judges in interpreting the Bill of
⁷⁵ Charles R Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative
Perspective (Chicago: University of Chicago Press, 1998), 2.
⁷⁶ Richard A Primus, The American Language of Rights (Cambridge: Cambridge University
Press, 1999), 71. For discussion of Ackerman’s analysis, see above ch 10, 301–305.
⁷⁷ See, eg, C Neal Tate and Torbjörn Vallinder (eds), The Global Expansion of Judicial Power
(New York: New York University Press, 1995); Ran Hirschl, ‘The Judicialization of Mega-Politics
and the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93–118.
Rights.⁷⁸ Although this subject has spawned a vast literature, the participants in
the exercise tend to share certain assumptions. ‘Constitutional theorists’, argues
Posner, ‘are normativists; their theories are meant to influence the way judges
tend to decide difficult constitutional cases’. Not only do most constitutional
theorists ‘believe in social reform through judicial action’, he argues, but much
of this theorizing ‘is strongly influenced by moral theory’,⁷⁹ or what he otherwise
labels ‘academic moralism’.⁸⁰ Or, as Bork puts it, the ‘groves of legal academe are
thick with young philosophers who propose various systems of morality that
judges must use to create new constitutional rights’.⁸¹
The earliest expression of this movement is Bickel’s 1962 work, The Least
Dangerous Branch. Acknowledging that the ‘least dangerous branch of the
American government is the most extraordinarily powerful court of law the
world has ever known’, Bickel provides an eloquent justification of extensive judi-
cial review.⁸² Adopting a Hamiltonian analysis, Bickel argues that the Supreme
Court, owing to its status as guardian of the Constitution, has today assumed the
role of ‘a legitimating force in society’, and this is so because for Americans ‘the
symbol of nationhood, of continuity, of unity and common purpose, is . . . the
Constitution’.⁸³ Since the court holds an extensive power that touches on most
aspects of life and for the exercise of which it is not subject to the usual political
restraints, he recognizes that this power must be subject to restraints. The most
important restraint is that ‘judicial review brings principle to bear on the opera-
tion of government’. By principle is meant ‘general propositions’ or ‘organizing
⁷⁸ From the many, see the following debate: Richard H Fallon Jr, ‘How to choose a constitu-
tional theory’ (1999) 87 California Law Review 535–579; David A Strauss, ‘What is constitutional
theory?’ (1999) 87 California Law Review 581–592; Michael C Dorf, ‘Create your own constitu-
tional theory’ (1999) 87 California Law Review 593–612.
⁷⁹ Richard A Posner, ‘Against Constitutional Theory’ (1998) 73 New York University Law
Review 1–22, 2.
⁸⁰ Richard A Posner, The Problematics of Moral and Legal Theory (Cambridge, MA: Belknap
Press, 1999), ch 1, 5. Posner argues that ‘academic moralism has no prospect of improving human
behaviour. Knowing the moral thing to do furnishes no motive, and creates no motivation, for
doing it; motive and motivation come from outside morality. Even if that is wrong, the analyti-
cal tools employed in academic moralism—whether moral casuistry, or reasoning from canonical
texts of moral philosophy, or careful analysis, or reflective equilibrium, or some combination
of these tools—are too feeble to override either narrow self-interest or moral intuitions. And
academic moralists have neither the rhetorical skills nor the factual knowledge that might enable
them to persuade without having good methods of inquiry or analysis. As a result of its analytical,
rhetorical, and factual deficiencies, academic moralism is helpless when intuitions clash or self-
interest opposes, and otiose when they line up. It is fortunate, moreover, that academic moralists
have no prospects for achieving their implied aim of imposing a uniform morality on society. Not
that they agree on what that morality should be; but each moral theory is implicitly uniformitar-
ian, while what a society like ours needs is moral variety—which is not the same thing as tolerance
merely of different moral beliefs’ (emphasis in original).
⁸¹ Robert H Bork, ‘Styles in Constitutional Theory’ (1985) 26 South Texas Law Journal
383–395, 387.
⁸² Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics [1962]
(New Haven, CT: Yale University Press, 2nd edn, 1986), 1.
⁸³ Ibid, 31.
ideas of universal validity in the given universe of a culture and a place, ideas that
are often grounded in ethical and moral presuppositions’.⁸⁴ Having neither force
nor will, the sword nor the purse, judges ‘have only society’s striving for the rule
of principle’.⁸⁵ The Supreme Court is, he concludes, ‘an institution charged with
the evolution and application of society’s fundamental principles’.⁸⁶
Bickel does not avoid the central question: ‘How and whence do nine law-
yers, holding lifetime appointments, devise or derive principles which they are
prepared to impose without recourse upon a democratic society?’⁸⁷ There are,
of course, the obvious sources on which they draw, ‘from the constitutional
text, from history, or from the record of their own . . . prior decisions’. But being
‘deposits of experiences’ or ‘empirical aids’, Bickel suggests that these are only
‘sources of inspiration, instigators of reflection, producers of mood’; they provide
‘the setting for judgment and they condition it, but they are not its wellspring’.⁸⁸
Bickel then supplies the answer:
The function of the Justices . . . is to immerse themselves in the tradition of our society
and of kindred societies that have gone before, in history and in the sediment of history
which is law, and . . . in the thought and the vision of the philosophers and the poets.
The Justices will then be fit to extract ‘fundamental presuppositions’ from their deepest
selves, but in fact from the evolving morality of our tradition.⁸⁹
Bickel’s candid resolution of the problem returns us full circle to the origins
of modern constitutionalism. The constitution, he is saying, cannot be treated
simply as a text, a contract among the people to establish the institution of gov-
ernment with enumerated powers; the constitution is a cultural artefact bound
up with the life of the nation. The distinction between the constitution of the
state and the constitution of the office of its government evaporates. Indeed,
Bickel’s answer places him much closer to Burke’s defence of the ancient idea of
the constitution than to Paine and the modern.⁹⁰ But there remains an impor-
tant difference: while expression and defence of the fundamental law in the older
understanding was a common responsibility imposed on all institutions and
officers of the state, today the judiciary claims a special knowledge of its mean-
ing and a special responsibility for its enforcement. Most of the burden of this
shift has been shouldered by the concept of constitutional rights. Constitutional
rights, it appears, can no longer be treated simply as a list of prescribed limita-
tions on the powers of government; they are principled expressions of the ‘moral
life of the nation’ (Sittlichkeit). Although they are now masked by an edifice of
normativism, constitutional rights must now be explicated by reference to the
(prudential) precepts of droit politique.
⁸⁴ Ibid, 199. ⁸⁵ Ibid, 204. ⁸⁶ Ibid, 109. ⁸⁷ Ibid, 235.

⁸⁸ Ibid, 236. ⁸⁹ Ibid.
⁹⁰ See above ch 10, 275, 278–279. Cf Alexander Bickel, The Morality of Consent (New Haven,
CT: Yale University Press, 1975).
Coming on the cusp of the ‘rights revolution’ in American constitutional law,

Bickel’s portrayal of constitutional rights as expressions of the fundamental prin-
ciples of a nation’s political morality established itself as the authoritative account
that, with embellishments, expressed the beliefs of liberal jurists.⁹¹ Even those
who have challenged aspects of the underpinning liberal ideology—in particu-
lar the relationship between society and government that Paine expressed—have
tended to work within Bickel’s framework. Consider, for example, the arguments
of those who oppose the liberal account of rights from the perspective of civic
republicanism. In The Partial Constitution, Sunstein draws on Madison’s work
to offer an account of the Constitution founded on the principle of ‘deliberative
democracy’. His basic argument is that the Constitution exists not only to ensure
the accountability of government to society but also to promote public-spirited
deliberation.⁹² However, although Sunstein challenges the liberal principle of
‘status quo neutrality’ in interesting and important ways,⁹³ his account of con-
stitutional method—which draws on text, structure, history, and interpretative
principles⁹⁴—does not deviate in significant respects from Bickel’s. Although
offering a different version of the nation’s fundamental values to the orthodox
liberal account, this republican analysis accepts the conventional account of the
status of the Constitution and of the judiciary’s role in acting as its guardian and
authoritative interpreter.
The most renowned challenge to Bickel’s claim that the Supreme Court’s main
responsibility is to provide a reasoned elaboration of the nation’s fundamental
values has come from Ely. The essence of Ely’s argument is that this appeal to
reason is nothing less than vacuous: reason, he argues, ‘is an empty source, in the
same way “neutral principles” turned out to be an empty source, or, if not empty,
it is so flagrantly elitist and undemocratic that it should be dismissed forthwith’.⁹⁵
Those who start from Bickel’s premise, Ely claims, are likely to realize that, after a
lifetime of searching for an impersonal value source that is not there to be tapped,
⁹¹ From the many, see Ronald Dworkin, Freedom’s Law: The Moral Reading of the American
Constitution (Cambridge, MA: Harvard University Press, 1996); Michael Perry, The Constitution
in the Courts: Law or Politics (New York: Oxford University Press, 1994).
⁹² Cass R Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993),
esp ch 1.
⁹³ Sunstein argues, for example, that the claims of freedom of speech that are protected by the
First Amendment exist not to promote free choice in markets but to uphold a regime of deliberative
democracy. This argument casts recent rights controversies, such as the extension of constitutional
protection to commercial advertising, to large expenditure on electoral campaigns, and to varieties
of pornographic speech, in a different light. Free speech in markets, argues Sunstein, can lead to an
abridgement of speech, just as governmental regulation of speech can be seen to promote freedom
of speech: ibid, chs 7–10.
⁹⁴ Ibid, chs 4 and 5.
⁹⁵ John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard
University Press, 1980), 59. The allusion is to Herbert Wechsler, ‘Toward Neutral Principles in
Constitutional Law’ (1959) 73 Harvard Law Review 1–35.
‘one might just as well “do the right thing” by imposing one’s own values’.⁹⁶ This,
he implies, is precisely what the leading constitutional jurists are doing.
Ely tries to resolve this quandary by promoting a purely process-orien-
tated approach to constitutional rights protection. He argues that since the
Constitution aims primarily to establish a ‘process of government, not a gov-
erning ideology’,⁹⁷ the main objective of constitutional adjudication should
be to support this process, and this the judiciary does by policing potential
malfunctions in the system. Th is narrower remit, he claims, best accords with
the intention of the framers, who had sought to establish a republican form of
government in which, since the representatives would govern in the interests of
the whole people, each citizen was entitled to equal respect.⁹⁸ Judges thus pro-
tect citizens’ constitutional rights by clearing the channels of political trade (by
protecting free speech, voting rights, rights of political association, etc) and by
facilitating the representation of minorities (through strict scrutiny of suspect
classifications).⁹⁹ This representation-reinforcing orientation offers a more inci-
sive reading of the Supreme Court’s pivotal analysis in footnote 4 of the Carolene
Products case,¹⁰⁰ and ‘unlike an approach geared to the judicial imposition of
“fundamental values” . . . is entirely supportive of the American system of repre-
sentative democracy’.¹⁰¹
Suggestive though it may be, Ely’s ambitious effort to reconcile judicial review
with democracy fails on one basic count. It is the attempt to do the impossible: to
clearly distinguish substance and process. Ely simply cannot avoid the fact that
the concept of representative democracy on which he relies needs to be defended
substantively—that is, on the basis of certain fundamental values of the type he
seeks to avoid. Democracy, as Sunstein notes, is far from being a self-defining
concept. Yet Ely never defends his own particular conception; he simply presents
it as ‘an inevitable reading of the general ideal’.¹⁰² And this general problem
becomes acute once Ely postulates the judiciary as the vehicle for overcoming
prejudice on the part of majorities. ‘When we say that someone is “prejudiced” ’,
Sunstein explains, ‘we are often making a moral judgment about their views’,
whereas Ely tends to use the term ‘as a placeholder for a moral theory that is not
fully identified or justified’.¹⁰³
⁹⁶ Ely, above n 95, 72. ⁹⁷ Ibid, 101.

⁹⁸ Ibid, 79. Ely (ibid, 80, 87) relies in particular on Th e Federalist Papers (above n 34),
Nos 51, 57.
⁹⁹ Ibid, chs 5 and 6. ¹⁰⁰ Above n 69. See also above ch 10, 303 (n 136).
¹⁰¹ Ely, above n 95, 101–102. ¹⁰² Sunstein, above n 92, 143–144.
¹⁰³ Ibid, 144. See further, Laurence H Tribe, ‘The Puzzling Persistence of Process-Based
Constitutional Theories’ (1980) 89 Yale Law Journal 1063–1080; Jürgen Habermas, Between
Facts and Norms William Rehg (trans) (Cambridge: Polity Press, 1996), 266, arguing that Ely
needs ‘to clarify the rationality characterizing the political process’ and that his ‘central concept
of a procedural justice of political opinion- and will-formation calls for a theory of democracy,
something that Ely leaves in the background’.
The general failure of American jurists to devise a generally accepted account

of the judiciary’s role in specifying and enforcing constitutional rights has caused
some to mark a retreat. This is made manifest by a renewal of interest in histori-
cal analyses that examine the extent to which contemporary interpretations are
compatible with the original intentions of those who drafted the Bill of Rights.
Exemplary of this genre is Bork, whose work on original intent seeks not only to
de-bunk most of the contemporary interpretations of constitutional rights but
also to restore the idea of the Constitution as a device to constrain government by
positing a set of entrenched rights that impose limits to governmental authority.
His method involves analysis of text, history, structure, and precedent—but not
the appeal to moral philosophy.¹⁰⁴
In pursuing this task, Bork obtains particular support from the nineteenth-
century jurists who treated the Constitution as the text, regarded the text as a
species of law, and saw the constitutional function of the judiciary as that of using
the ordinary canons of legal interpretation for the purpose of discerning the
meaning of the text. Bork thus draws on such leading authorities as Story, Kent,
Cooley, and Thayer to demonstrate that in the American tradition of constitu-
tional review, judges declared unconstitutional only those legislative acts that
were demonstrably so.¹⁰⁵ And, perhaps most instructively, he cites approvingly
Story’s contention on the role of the judiciary in interpreting the Constitution:
‘The first and fundamental rule in the interpretation of all instruments is to con-
strue them according to the sense of the terms and the intention of the parties’.¹⁰⁶
For Story—as for Bork—the key elements of this approach involve conceiving
the Constitution as a contract, conceiving the Constitution as ordinary law, and
regarding the method of constitutional interpretation as similar to the ordinary
methods of legal interpretation.
As a method of constitutional interpretation, originalism is driven by the
failure of the search for consensual fundamental values, a task that Bork
argues must end in ‘constitutional nihilism’, in the judiciary’s insinua-
tion of its own personal values, and in the ‘advocacy of opportunistic judi-
cial authoritarianism’.¹⁰⁷ But the claim of originalism, which seeks to reduce
¹⁰⁴ Bork, above n 81; Robert H Bork, The Tempting of America: The Political Seduction of the
Law (London: Sinclair-Stevenson, 1990). The most prominent advocate on the Supreme Court
is Justice Antonin Scalia: see Antonin Scalia, ‘Originalism: The Lesser Evil’ (1989) 57 Cincinnati
Law Review 849–865; Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law
¹⁰⁵ See, eg, the argument of Thayer, above ch 10, 293–294.
¹⁰⁶ Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard,
Gray & Co, 1833), §400; cited in Bork, above n 81, 385.
¹⁰⁷ Bork, ibid, 388. Originalism is sometime referred to as interpretivism, on the ground that
it seeks to interpret the text, in contrast to other types of value-promoting theories, which assign
the task to the judiciary of discovering fundamental values that may not be found in the text. The
latter group are not interpretivist, or if they are interpreting something that something (claim the
interpretivists) is not the Constitution.
textual interpretation to matters of fact, is scarcely more compelling.¹⁰⁸ In the
United States, originalism also has a specific political agenda, that of seeking
to roll back the ambit of constitutional rights for the purpose of reinforcing
a more conservative arrangement between society and government. As Bork
expresses it, ‘all respectable modes of constitutional theorizing lead to approxi-
mately the same place, and that place is a much more egalitarian and socially
permissible position than a majority of Americans desire’.¹⁰⁹ In contemporary
America, abstract universal principles are being promoted under the banner
of constitutional rights and, lacking a mediating authority, it is perceived by
many only as the ‘freedom of the void’. It may seem strained to place the consti-
tutional law professors of Harvard and Yale in the posture of the Jacobins, and
the clash may not have reached the heights of ‘absolute freedom and terror’, but
Hegel’s warning remains pertinent.
We therefore arrive at a point at which no theory of the nature of constitu-
tional adjudication is able to command acceptance. This realization has led to the
emergence of a range of more pragmatic approaches, which to varying degrees
emphasize the importance of reaching agreement on decision outcomes in situa-
tions where there is disagreement over the underpinning principles. Exemplary of
this type of approach to the issue is Taylor’s ‘narrow gauge discoveries’,¹¹⁰ Rawls’
‘overlapping consensus’,¹¹¹ Sunstein’s ‘incompletely theorized agreements’,¹¹²
and Posner’s explicitly pragmatic position that a judge ‘wants to come up with the
¹⁰⁸ See, eg, Bickel, above n 82, ch 2; Ely, above n 95, chs 1–2; Sunstein, above n 92, ch 4;
Ronald Dworkin, ‘The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve’ (1997)
65 Fordham Law Review 1249–1293.
¹⁰⁹ Bork, above n 81, 394.
¹¹⁰ Charles Taylor, ‘Neutrality in Political Science’ in his Philosophical Papers, vol.2 (Cambridge:
Cambridge University Press, 1985), 58–90, 90: ‘The only way to avoid this [ie, value conflicts]
while doing political science would be to stick to the narrow-gauge discoveries which, just because
they are, taken alone, compatible with a great number of political frameworks, can bathe in an
atmosphere of value neutrality’.
¹¹¹ John Rawls, ‘The Idea of an Overlapping Consensus’ in his Political Liberalism (New York:
Columbia University Press, 1993), 133–172. Rawls argues that in a well-ordered pluralistic society
‘a reasonably comprehensive doctrine cannot secure the basis of social unity, nor can it provide the
content of public reason on fundamental political questions’; this can only be achieved on the basis
of ‘an overlapping consensus of reasonably comprehensive doctrines’ which enables a ‘political con-
ception’ of justice to emerge (at 134).
¹¹² Cass R Sunstein, Legal Reasoning and Political Confl ict (New York: Oxford University
Press, 1996), 36–37: ‘Incompletely specified agreements . . . allow people to develop frameworks
for decision and judgment despite large-scale disagreements . . . . Let us turn to a second phenom-
enon. Sometimes people agree on a mid-level principle but disagree about both general theory
and particular cases. . . . My particular interest here is in a third kind of phenomenon, of special
interest for law: incompletely theorized agreements on particular outcomes, accompanied by
agreements on the narrow or low-level principles that account for them’. In similar vein, see also
his argument on judicial minimalism: Cass R Sunstein, One Case at a Time: Judicial Minimalism
on the Supreme Court (Cambridge, MA: Harvard University Press, 1999). It might be noted that
Sunstein here is influenced by Burke and Halifax: see Cass Sunstein, ‘Burkean Minimalism’
(2006) 105 Michigan Law Review 353–408; Cass Sunstein, ‘Trimming’ (2009) 122 Harvard
Law Review 1049–1094.
decision that will be best with regard to present and future needs’.¹¹³ It is within
this range of approaches, which are attempts to reconcile the ideals of constitu-
tional ordering with practical necessities, that we see more clearly the methods of
droit politique in operation.
Although the specific positions outlined here are, in one sense, peculiar to
the American experience—a product of the unusual role that the Constitution,
lawyers, and law schools play in the public life of the nation—they do amount
to representative expressions of positions that have parallels in all constitutional
democracies, which increasingly are having to grapple with this question of the
legitimacy of constitutional adjudication. Nevertheless, comparative lawyers
sometimes claim that there is one basic doctrine of constitutional adjudication
that has not fully emerged in the American system and which offers a rational
method of adjudicating constitutional rights claims: this is the doctrine of
proportionality.¹¹⁴ Beatty claims great things for the doctrine. He argues that
‘despite the carnage that the theorists have made of each other’s ideas, judges all
over the world have converged on a framework of analysis that allows them to
evaluate the work of the political branches of government from a common per-
spective and without regard to their own political and moral philosophies’.¹¹⁵
That may be so. But it must similarly be recognized that, although the doctrine
of proportionality imposes a useful discipline on the judicial role in resolving
constitutional rights questions, it does not—as even its most rigorous exponents
recognize—eliminate the necessity of balancing.¹¹⁶ In reality, the proportional-
ity concept imposes a structural discipline over what are essentially pragmatic
judicial methods of resolving constitutional rights questions. It exists precisely
in recognition of the fact that rights do not occupy an entrenched position in
the constitutional order; they are claims that are worthy of respect, but can
¹¹³ Posner, above n 80, 242. Posner elaborates: ‘So the pragmatist judge regards precedent,
statutes, and constitutional text both as sources of potentially valuable information about the
likely best result in the present case and as signposts that he must be careful not to obliterate or
obscure gratuitously, because people may be relying on them. But because he see these “authorities”
merely as sources of information and as limited constraints on his freedom of decision, he does
not depend on them to supply the rule of decision for the truly novel case. He looks to sources
that bear directly on the wisdom of the rule that he is being asked to adopt or modify’. For his
most elaborate statement, see Richard Posner, Law, Pragmatism, and Democracy (Cambridge, MA:
Harvard University Press, 2003), 59–85.
¹¹⁴ The doctrine, which first emerged in the German system, was adopted for consideration of
claims under the European Convention of Human Rights, and has since been widely adopted in
the resolution of constitutional rights issues in many jurisdictions: see David Beatty, The Ultimate
Rule of Law (Oxford: Oxford University Press, 2004), 162–163. The proportionality doctrine
incorporates three main tests. It states that action of public authorities which curtails the exer-
cise of a right (i) must be capable of achieving the desired end (rationality of ends requirement);
(ii) must employ the least restrictive method that is equally effective in realizing that end (least
restrictive means requirement); and (iii) must be justified by reference to the rights incursion made
(proportionality requirement).
¹¹⁵ Beatty, ibid, 159.
¹¹⁶ See esp Robert Alexy, A Theory of Constitutional Rights Julian Rivers (trans) (Oxford: Oxford
be infringed by governments pursuing legitimate purposes in a proportionate
manner.
V. Subjective Rights and Objective Law
The foundational issues placed in question by the phenomenon of constitutional

rights can now be more clearly elaborated with respect to the distinction that
derives from continental European jurisprudence; this is the distinction between
subjective rights and objective law. Although this distinction raises many intri-
cate questions, for our purposes the two concepts can be simply distinguished.
Subjective rights are rights that are possessed by an individual in right of their
status as a person, and this is primarily a question of ethics. The issue of objective
law, by contrast, is concerned with whether, and to what extent, such rights exist
as extant norms of the legal order.
As we have seen, constitutional rights discourse emerges from the late-eight-
eenth-century charters and declarations of rights. But although these might be
taken as expressions of the spirit of the age, their precise legal status remained
highly ambiguous. Since the legal status of written constitutions was itself uncer-
tain, this may not be surprising. But charters of rights were doubly so since, often
being drafted separately from written constitutions, their relationship to them
was unclear. Were they merely exhortatory or were they intended to form part
of the constitutional settlement? And even if they were part of the constitutional
settlement, what was their legal status?
Whatever the ambiguities, one thing seems clear: the logic of these charters
respected a distinction between rights and law. This is rendered explicit in Article
4 of the French Declaration which talks of the ‘natural rights’ of political lib-
erty being limitable only by the need to secure equal rights to all, and states that
‘these limits are determinable only by the law’. This distinction can be drawn
into a coherent conceptual scheme once Paine’s distinction between society and
government is accepted. In this scheme, these rights are those claimed by society
(as civil rights) to protect the individual from the exercise of the (legal) powers of
government.
This scheme amounts to an elaboration of the classical liberal scheme of
rights, that is, the scheme of rights protected in accordance with the bourgeois
Rechtsstaat. Under this arrangement, rights define the sphere of liberty of the
individual and, while not pre-social (since they are converted from natural rights
into civil rights), they are (as Paine recognized) ‘antecedent to a government’ and
therefore in a technical sense pre-political.¹¹⁷ As Schmitt accurately puts it, ‘these
¹¹⁷ Paine, above n 1, 122: ‘A constitution is a thing antecedent to a government, and a govern-
ment is only the creature of a constitution’.
basic rights are not legal entitlements, but rather spheres of freedom, from which
rights, more precisely, defensive rights, stem’.¹¹⁸
These basic rights are therefore constitutional rights in the strict sense that they
enunciate rights that vest in the sphere of society and establish the boundaries of
the authority of the office of government.¹¹⁹ Government might be involved in
determining the legal boundaries of these rights but since these rights do not
emanate from positive law, this role is limited only to the function of determining
equal liberties for all individuals. It is therefore emphatically not the function of
government to determine the nature or content of these rights. Since this limited
governmental function is one that will primarily be undertaken by the courts,
the judiciary, within this classical liberal scheme, is commonly viewed as being
an agency of society rather than of government.¹²⁰
Such basic rights can of course operate in conjunction with the existence of
political rights of citizenship. The latter type of right, however, is quite differ-
ent in structure: such rights ‘cannot in principle be unlimited, cannot be “liber-
ties” ’,¹²¹ and they exist not to define a zone of private autonomy—the boundaries
of the public—but rather the terms of participation within the realm of the pub-
lic. Because of the ‘demarcatory character of the individual basic rights’, explains
Böckenförde, ‘the liberty guaranteed under them is liberty pure and simple, not
liberty for particular ends and purposes (such as furthering the democratic politi-
cal process, implementing values, integrating the political community, and so
on)’.¹²² Political rights may be constitutional rights in the sense that they define
the terms of government, but these rights are subject to revision and amendment
through governmental processes. The purposes for which individuals use their
basic civil rights, by contrast, are of no concern to government. And the corollary
of this is that the actual realization of these liberties by individuals is similarly
beyond the government’s remit.
¹¹⁸ Carl Schmitt, Constitutional Theory [1928] Jeff rey Seitzer (trans) (Durham, NC: Duke
University Press, 2008), 202 (emphasis in original).
¹¹⁹ It is sometimes said that, within such a scheme, ‘the liberty enshrined in the basic rights is not
constituted by the state; in legal terms it is antecedent to the state’: Ernst-Wolfgang Böckenförde,
The Basic Rights: Theory and Interpretation’ in his State, Society and Liberty: Studies in Political
Theory and Constitutional Law JA Underwood (trans) (New York: Berg, 1991), 175–203, 179. See
also Schmitt, above n 118, 202. But this is to confuse the juridical concepts of government and
state. It might be said more precisely that classical liberalism is a political theory that has been
devised with the objective of destroying the juridical idea of the state and sovereignty as expressions
of the autonomy of the political/public sphere.
¹²⁰ This formulation raises a major issue: in the English tradition, for example, the claim takes
us back to the uses made of the myth of the ancient constitution: see JGA Pocock, The Ancient
Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century
(Cambridge: Cambridge University Press, rev edn, 1987); cf Michel Foucault, Society must
be defended: Lectures at the Collège de France, 1975–76 David Macey (trans) (London: Penguin,
2003), 99–111.
¹²¹ Schmitt, above n 118, 207.
¹²² Böckenförde, above n 119, 180 (emphasis in original).
The account of basic rights in the classical liberal model—the model of the
Rechtsstaat—conceives these to be rights vested in individuals (ie, subjective
rights) against government. The problem is that this conception of the society/
government relationship has nowhere come close to existing in a stable form.
Some of the reasons for this have already been expressed by Hegel, others were
explained in Chapter 11 with respect to understanding the bourgeois Rechtsstaat
as a mode of association. This account of constitutional rights is constructed for a
world of limited government, one which exists nowhere in the modern world.¹²³
With the emergence of modern regimes of government, the concept of subjective
rights, strictly conceived, has been superseded.
In modern constitutional settlements, the basis of rights theories has dramat-
ically shifted. Rights are no longer conceived as defining a zone of individual
autonomy freed from governmental interest. Rights are now conceived to be part
of the objective organizational principles of the constitutional order that has been
instituted. Rather than being treated as pre-political rights that specify the limits
of government, constitutional rights emerge from and obtain their realization
only through the constitutional order that authorizes the office of government.
This is possible, Böckenförde notes, ‘only on a reading that makes legal liberty
itself an “institute”, an objective datum that evolves and is realised (only) in more
detailed elaboration and adaptation of ideas of order and objective realities’.¹²⁴
Whereas liberty previously was conceived as imposing limitations on law, liberty
now becomes a state that is realized only through the operations of law. Instead of
being treated as a natural condition—the product of pre-political social process-
es—liberty becomes a political condition that is itself institutionally shaped and
normatively ordered.
The juristic consequences are profound. First, the nature of the relationship
between rights and law is transformed. Once conceived as a species of command
that imposed constraints on pre-existing liberties, law itself increasingly comes
to be treated as a species of right. Rather than being seen to be the outcome of an
exercise of will, law comes to be treated as an elaboration of reason. Rather than
being treated as an order of rules, law is viewed as a configuration of principles.
But that is not all. Constitutional rights can no longer be seen to guarantee a
liberty ‘pure and simple’. There can be no such thing as an absolute right: since
all constitutional rights must be conceived as promoting certain purposes, the
right exists only to the extent that it aids the realization of those purposes.¹²⁵ All
constitutional rights become conditional—conditional on a perception of their
¹²³ One might speculate on the extent to which the claims of originalism in American constitu-
tional adjudication draw their sustenance from this image of the political world.
¹²⁴ Böckenförde, above n 119, 184.
¹²⁵ Böckenförde, ibid, 192, cites a decision of the German Federal Administrative Court which
states: ‘The basic rights are not granted to the citizen for him to do as he likes with them; they
are granted to him in his capacity as a member of the community and hence also in the public
interest’.
utility in ensuring the realization of the public aspirations of the political nation
(which aspirations must, of course, remain highly contestable). And it must be
emphasized that it is only in this situation that the principle of proportionality, of
trying to establish a metric for determining the conditions under which rights are
tradeable, makes sense.¹²⁶
Not only do constitutional rights become conditional—and thereby contest-
able—but their existence and exercise increasingly appears to depend on posi-
tive action by government. In the model of classical liberalism, constitutional
rights—as de-limiting rights—were formal provisions, and the precise manner
of their exercise was of no concern to government. But in this modern regime,
government comes to be seen as the guardian of these rights, which is not surpris-
ing since the trajectory of the shift is away from rights as ‘freedom from’ towards
rights as ‘freedom to’. Such basic rights increasingly are guaranteed as a way of
‘facilitating and safeguarding’ the democratic political process, which means ‘that
liberty is quite literally functionalised’.¹²⁷ Government ‘is thus made responsible,
by the constitution, for creating and safeguarding the necessary social conditions
for the liberty enshrined in the basic rights’.¹²⁸ In these circumstances, ‘social
rights’ are neither subjective rights nor objective law, but programmatic state-
ments of uncertain legal status.
These issues are taken up in Part V of the book. But it should here be noted
that this tension—expressed in the German system as a tension between the
Rechtsstaat and the Sozialstaat—forms the backdrop to Habermas’ major
work Between Fact and Norms, which seeks to reconcile democracy and rights.
Arguing that modern societies are integrated both socially through values,
norms, and mutual understanding and systemically through markets and
organizational imperatives, Habermas argues that law remains ‘a profoundly
ambiguous medium of societal integration’.¹²⁹ Law operates between facts and
norms,¹³⁰ between the idealism of constitutional law and the materialism opera-
tionalized through administrative law. For this reason, Habermas argues, con-
trary to the claims of American jurists such as Dworkin,¹³¹ that law cannot be
¹²⁶ But note Böckenförde, ibid, 191. Explaining how the existence of these conditions have
resulted in basic rights being treated in German constitutional jurisprudence as a system of values,
he notes: ‘There is no sign as yet of either a rational justification for values, let alone an order of
values, or a rationally recognisable and debatable system of preferences for weighing and ranking
values. . . . So the appeal to a system for weighing and ranking values is no justification of what it
claims to justify. Rather it obscures the actual grounds of decisions about the relative weight and
rank of values by giving those decisions an appearance of rationality and releasing them from the
need for proper justification. In practical terms it serves as a cloak for case-by-case interpretation
and adjudication’.
¹²⁷ Böckenförde, ibid, 193. ¹²⁸ Ibid, 202. ¹²⁹ Habermas, above n 103, 40.
¹³⁰ Habermas, ibid, 90: ‘The tension between facticity and validity [is] built into law itself ’.
¹³¹ Ibid, 63: ‘Dworkin not only expects theory to take on the burden of justification for
abstract principles hanging in midair, as it were. He also sets it the task of providing these prin-
ciples with an ethical foundation’. See Dworkin, above n 91; Ronald Dworkin, Taking Rights
treated as a species of morality. But he also recognizes that it cannot be reduced
to command, not least because, to be effective, law cannot be seen to be simply
imposed; it must also be acknowledged to be legitimate. Since we are living today
in a ‘post-metaphysical’ age, these sources of legitimacy cannot be divine (classi-
cal natural law) or customary (especially in the German case of reliance on the
ways of the Volk). Habermas therefore claims that the only ground of legitimacy
today is democracy.¹³²
Habermas avoids the paradoxical elements of this argument by adopting a
concept of democracy rooted in a form of discourse theory, in which a set of
basic rights establishing the basic elements of citizenship (speech, expression,
association, political participation, and rights to basic social living conditions)
form the preconditions for the establishment of democracy. This is his co-ori-
ginality thesis. Contrary to those theorists who argue for the priority of rights
over democracy, those who argue for the inversion of that priority, and those
who claim the intrinsically antagonistic nature of that relationship, Habermas
asserts the co-originality of rights and democracy, as the essential conditions
of private and public autonomy.¹³³ Subjective rights emerge co-originally with
objective law.
Habermas’ presentation of this thesis is best understood as an elaboration
of droit politique for the contemporary age. This is most explicitly revealed in
his ‘reconstructive approach to law’ which, building on the symbiotic relation-
ship between subjective right and objective law, develops the internal relation
between law and political power.¹³⁴ When Habermas argues that political
power ‘is not externally juxtaposed to law but is rather presupposed by law and
itself established in the form of law’, this must be understood as referring not to
positive law, but to public law as droit politique.¹³⁵ When he claims that ‘politi-
cal power can develop only through a legal code’,¹³⁶ the code he is specifying is
not one of positive law, but of public law. When he claims that law gains its nor-
mativity ‘neither through its legal form per se [ie, positive law], nor through an
a priori moral content [ie, law as a species of morality], but through a procedure
of lawmaking that begets legitimacy’, he is seeking to establish conditions for
public law.¹³⁷
Habermas’ specification of the conditions of political right for the post-meta-
physical age is perhaps the most cogent effort that has been made to reconcile
constitutional rights with the claims of democracy. It is a version of reflexive
Seriously (Cambridge, MA: Harvard University Press, 1977); Ronald Dworkin, A Matter of
Principle (Cambridge, MA: Harvard University Press, 1985).
¹³² Habermas, above n 103, 60: ‘In a pluralistic society, the theory of justice can expect to be
accepted by citizens only if it limits itself to a conception that is postmetaphysical in a strict sense,
that is, only if it avoids taking sides in the contest of competing forms of life and worldviews’.
¹³³ Ibid, 118–131. ¹³⁴ Ibid, chs 3 and 4. ¹³⁵ Ibid, 134.
¹³⁶ Ibid. ¹³⁷ Ibid, 135 (emphasis in original).
constitutionalism, presented as ‘a tradition-building project’ in which ‘the later

generations have the task of actualizing the still-untapped normative substance
of the system of rights laid down in the original document of the constitution’.¹³⁸
It remains, nonetheless, a contentious theory both in terms of its construction
and its empirical reference.¹³⁹
¹³⁸ Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory

Principles?’ (2001) 29 Political Theory 766–781, 774.
¹³⁹ See only, Alessandro Ferrara, ‘Of Boats and Principles: Reflections on Habermas’s
“Constitutional Democracy”’ (2001) 29 Political Theory 782–791; Bonnie Honig, ‘Dead Rights,
Live Futures: A Reply to Habermas’s “Constitutional Democracy”’ (2001) 29 Political Theory
792–805.
PA RT V
G OV E R N M E N T
13
The Prerogatives of Government
In Part III we examined the state, an institution which emerged during the six-
teenth and seventeenth centuries as a result of technological innovation, enhanced
military capacities, and the establishment of centralized authority. In Part IV, the
focus shifted to constitutional frameworks, the contours of which were shaped
by the bourgeois revolutions of the seventeenth and eighteenth centuries. If the
precondition for the formation of the state is the establishment of absolute sov-
ereign authority, it might be said that the precondition for the establishment of
constitutionalism is the destruction of the figure of the sovereign. But it has been
argued that the ideal of constitutionalism—otherwise, the realization of the ‘rule
of law’—is an impossible dream. This is because the state embodies an irreconcil-
able tension between the ideals of societas and universitas, and constitutionalism
can realize its objective only if the state is conceived entirely in the image of soci-
etas. The existence of this tension means that the governing relationship cannot
be conceived simply as one of limited and precise delegation of power; those in
authority ‘must be in some ways released from the control of those over whom
they govern’ and ‘accorded the discretion and coercive power that they need’.¹
The sovereign, it would appear, remains with us in the modern edifice of public
law, though it becomes a figure of uncertain character.
In Part V, the objective will be to examine the position of the sovereign—
otherwise, ‘the government’—within the modern state. In framing modern
republican government, Madison had explained, ‘you must first enable the gov-
ernment to control the governed; and in the next place oblige it to control itself’.²
In Chapter 10, we considered how, through constitutional frameworks, govern-
ment controls itself. But Madison’s initial claim—that government must control
the governed—was left unexplored. This theme is taken up in Part V.
One effect of the establishment of modern constitutional arrangements has
been to enhance potestas, the rightful power of rule: institutionalization and
dispersal of governmental power has strengthened the authority of its exercise.
But, as has been explained, the power exercised through the modern state is
¹ John Dunn, ‘Trust and Political Agency’ in his Interpreting Political Responsibility: Essays
1981–1989 (Cambridge: Polity Press, 1990), 26–44, 36.
² James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 51 (Madison), 320.
376 The Prerogatives of Government
twofold: alongside potestas there emerges potentia, a source of power drawn
from government’s actual ability to control the disposition of things.³ In Part V,
we consider the ways in which government deploys the power that is expressed
as potentia, a type of power that enhances the discretionary aspects of govern-
mental action.
The operation of potentia in modern government will be more directly con-
sidered in the chapter that follows. Before doing so, it is necessary to examine its
origins and to indicate how it is able to operate through modern constitutional
frameworks. The argument presented in this chapter is that potentia initially
operated by exploiting the residue of lordship contained within the modern con-
cept of rulership. The king’s traditional title of Dominus rex had incorporated an
amalgam of feudal and regal rights and these collectively made up the prerogative
powers of the ruler. In the course of modernization, these prerogative powers of
the king were subject to a series of restrictions imposed by constitutional set-
tlements. But even within modern constitutional frameworks, these limitations
were never entirely comprehensive. And with the extending responsibilities of
modern governments, the ambiguities of these prerogative powers became ripe
for exploitation. By analysing the nature of prerogative power and examining
its continuing influence in modern government, the ambiguous nature of power
relations within modern constitutional structures is exposed.
I. Prerogative Power
With the emergence of the modern state, the status of the king was placed in ques-
tion. Was the king the embodiment of the state or merely its first servant? Many
of the controversies revolved on the nature and extent of the king’s prerogatives.
Within the framework of medieval constitutionalism the king had always been
recognized to be superior to feudal lords. But, as has been explained in Part I of
the book, the transition to sovereign territorial statehood heightened this status,
requiring an elevation of the office of the king. The Church became subordinate to
the king, and the king was recognized not only to be the head, but also to act as the
chief representative—and even to be the embodiment—of the state. The transition
to sovereign statehood took different paths, with many continental European states
in early modernity embracing absolutism.⁴ Whatever the precise course taken, this
transition coincided with a rejuvenation and modernization of legal theories cen-
tred on the sovereign office of the king. The authority of that office was expressed
primarily through the nature of the king’s prerogative powers.
This being the case, it is not surprising to find that Bodin’s path-breaking
treatise on the République contains a detailed analysis of the ‘true marks’ of the
³ See above ch 6, 164–171.

⁴ See John Miller (ed), Absolutism in Seventeenth-Century Europe (London: Macmillan, 1990).
sovereign.⁵ These marks—attributes of the office of the sovereign not shared

by his subjects—form a catalogue of the sovereign’s prerogative powers. The
first and most important prerogative is ‘to be of power to give laws and com-
mand to all in general, and to every one in particular’.⁶ Bodin suggests that, in
one sense, all other prerogatives can be comprehended within the frame of this
general power.⁷ These other main powers include declaring war and making
peace, hearing appeals in the last instance from the judgments of any magis-
trate, appointing and removing officers of state, imposing taxes and aids and
exempting therefrom, granting pardons and dispensations against the rigour of
the law, determining weights, measures and coinage, and requiring allegiance of
subjects.⁸ This account of the main prerogative powers was widely accepted in
European jurisprudence. When, for example, Sir Matthew Hale wrote a com-
prehensive analysis of the prerogative powers of the English king during the
1650s, his extensive tabular catalogue could without much difficulty be mapped
directly onto Bodin’s scheme.⁹
The general point is that, whatever differences may have existed in the various
constitutions of government in the early-modern period, the king remained the
keystone of the regime and in that role maintained a common core of prerogative
powers. At this critical moment, ‘the public law of the kingdom was practically
equivalent with the sum of the king’s powers both prerogative and statutory, and
in large measure the subject’s rights and liberties were defined by the bounds and
limits of that authority’.¹⁰ These powers guaranteed the permanence and security
of government; for Hale, this ‘abiding framework of government was above and
unaffected by dynastic revolution and usurpation’.¹¹
Of particular importance was the fact that these prerogative powers, the jura
summi imperii, were seen to be possessed by the king absolutely. Not only had the
monarch ‘no dependence upon any foreign state or power’ but ‘neither is it subject
to the power of the people either distributively, collectively or representatively’.¹²
⁵ Jean Bodin, The Six Bookes of a Commonweale [1576] Richard Knolles (trans, 1606) Kenneth
Douglas McRae (ed) (Cambridge, MA: Harvard University Press, 1962), Bk I, ch 10.
⁶ Ibid, 162.
⁷ Hobbes, it might be noted, follows Bodin on this point, and treats all other prerogatives
as derivative rights of the sovereign power of command: see Thomas Hobbes, Leviathan [1651]
Richard Tuck (ed) (Cambridge: Cambridge University Press, 1996), ch 18.
⁸ Bodin, above n 5, 163.
⁹ Sir Matthew Hale, The Prerogatives of the King DEC Yale (ed) (London: Selden Society,
1976), Tabulae Prerogativa Regis, xii–xx. Further illustrations are provided in Dr John Cowell,
Law Interpreter (1607) which, under the title Regalia, states: ‘The Royal Rights of a King, the
Civilians reckon to be six, 1. Power of Judicature. 2. Power of Life and Death. 3. Power of War and
Peace. 4. Masterless goods, such as Waifes, Estrays etc. 5. Assessments. And 6. Minting of Money’.
Cited in Francis D Wormuth, The Royal Prerogative, 1603–1649: A Study in English Political and
Constitutional Ideas (Ithaca: Cornell University Press, 1939), 34.
¹⁰ Yale, above n 9, xi.
¹¹ Ibid.
¹² Hale, ibid, 13. Hale notes that ‘the reason is because the people have either by express or tacit
consent transferred the sovereignty unto the king according to the just extents thereof ’.
In many continental regimes, this claim provided the basis of absolutist rule, while
in seventeenth-century England it became the central issue around which the
constitutional conflicts of that century revolved.¹³ The critical point with respect
to the English situation is that when the powers of Parliament stood opposed to
the king’s prerogative powers, the notion that an Act of Parliament might restrict
the exercise of the king’s prerogative powers remained highly contentious.¹⁴ The
conflicts of this period, once again, highlight the tensions within the discourse of
public law between modern and medieval ideas, between Romanist and Gothic
ideologies, between rationalist claims and historical practices.¹⁵
To appreciate the importance of prerogative power in modern governmen-
tal ordering, it is essential to examine the nature of the concept at this critical
early-modern moment of conflict. For this purpose, the difference between types
of prerogative powers must be explained. Of particular importance is the dis-
tinction between the king’s regal and legal powers, otherwise expressed as that
between his absolute and ordinary powers.¹⁶ This distinction was central to
Chief Baron Fleming’s judgment in Bate’s Case (1606). Fleming explained that
the ordinary powers exist ‘for the profit of particular subjects, for the execution
of civil justice, the determining of meum’. This ordinary power, that of declaring
law and resolving legal disputes, ‘is executed by equity and justice in ordinary
courts, and by the civilians is nominated jus privatum and with us, common law’.
He held, most importantly, that ‘these laws cannot be changed, without parlia-
ment’. But Fleming went on to explain that, by contrast, the ‘absolute power of
the King’ cannot be converted to private use: it ‘is applied to the general benefit
of the people and is salus populi’. This absolute power ‘is most properly named
Policy and Government; and as the constitution of this body [sc. the body politic]
varieth with the time, so varieth this absolute law, according to the wisdom of the
King, for the common good’.¹⁷
The distinction being made by Fleming was widely acknowledged at the time.
It was accepted that the ordinary prerogatives of law-making and adjudication
were bounded and delegated: although the king was the fountain of justice, the
legislative power could be exercised only through Parliament and the judicial
¹³ See Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale
University Press, 1996); Steve Pincus, 1688: The First Modern Revolution (New Haven, CT: Yale
¹⁴ The Case of Ship-money (1637) 3 St Tr 825, 1235: ‘No act of Parliament can bar a king of
his regality’ (per Finch CJ). Cf Bill of Rights 1689, which declared that ‘the pretended power of
suspending the laws or the execution of laws by regal authority without consent of Parliament is
illegal; that the pretended power of dispensing with laws or the execution of laws by regal author-
ity . . . is illegal; that levying money for or to the use of the Crown by pretence of prerogative, with-
out grant of Parliament . . . is illegal’.
¹⁵ See, eg, JGA Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical
Thought in the Seventeenth Century (Cambridge: Cambridge University Press, rev edn, 1987).
¹⁶ The Case of Ship-money (1637) 3 St Tr 825, 1083: ‘In the king are two kinds of prerogative,
regale et legale’ (per Crawley J).
¹⁷ Bate’s Case (1606) 2 St Tr 371, 389.
power had been delegated to the judges. Such arrangements provided the basis
for the protection of property rights (meum et tuum). But it was similarly accepted
that the regal or absolute prerogatives, those lying at the core of the governmental
function, belonged exclusively to the king.¹⁸ In the light of this distinction, the
seventeenth-century constitutional conflicts can be understood to revolve around
the nature of these prerogative powers and in particular the boundaries—many
of which had never been stated with precision—between these ordinary and
absolute prerogatives.
Only with the coming of modernity was the question of the prerogative ele-
vated to a higher level of abstraction. That is, only with modernization was the
issue of whether or not there existed a general concept of prerogative power (as
distinct from a number of specific powers) confronted.¹⁹ The question was not
that of whether the exercise of the absolute prerogative was beyond the law. The
term ‘absolute’, notes Holdsworth, ‘gave countenance to the idea that the king
had a large and indefinite reserve of power which he could on occasion use for
the benefit of the state’.²⁰ But this was not the crux of the matter. It was gener-
ally accepted that the boundary between law and prerogative—between juris-
dictio and gubernaculum—had to be maintained. The essential point concerned
a narrower and more nuanced question: should the manner in which the king
exercised these absolute prerogatives remain of no concern to law?²¹ The problem
was that the nature and scope of these absolute prerogative powers had never pre-
viously been defined with any degree of precision.
The claim to autonomy was made most directly by James I in his speech to
the judges in Star Chamber in 1616. ‘Encroach not upon the Prerogative of the
Crown’, he declared, ‘for they are transcendent matters, and must not be sliberely
[sc. lightly or wantonly] carried with over-rash wilfulness’. If a question arises that
concerns ‘my Prerogative or mystery of State, deal not with it, till you consult
with the King or his Council’. For ‘that which concerns the mystery of the King’s
power, is not lawful to be disputed’. The ‘absolute Prerogative of the Crown’, in
¹⁸ See, eg, Sir Edward Coke, Commons Debates, 1621: ‘I will not examine the King’s
Prerogative. There is a Prerogative disputable and a Prerogative indisputable, as to make war and
peace; the other concerns meum et tuum and are bounded by Law’. Cited in Wormuth, above
n 9, 56.
¹⁹ David S Berkowitz, ‘Reason of State in England and the Petition of Right, 1603–1629’ in
Roman Schnur (ed), Staatsräson: Studien zur Geschichte eines Politischen Begriff s (Berlin: Duncker
& Humblot, 1975), 165–212, 178: ‘Whatever progress the crown and its adherents made in mod-
ernizing the theory of royal power in the continental mode, it was apparent that the common law
opposition still thought of the prerogative as a catalogue of specific royal rights and not as a general,
abstract, and unlimited authority’. See further Wormuth, above n 9, 54.
²⁰ Holdsworth, above n 30, 206–207.
²¹ In Bate’s Case, above n 17, for example, Fleming held that, since imposts concerned foreign
trade, their use fell within the absolute prerogative of the king. The king could impose whatever
duties he pleased for the purpose of regulating trade (as opposed to the raising of general revenue);
but the court could not look behind the king’s claim that the impost was designed for the regula-
tion of trade.
short, ‘is no Subject for the tongue of a Lawyer’.²² James here was claiming that
judges had no role to play in examining the manner in which the king’s absolute
prerogative powers were exercised.
The main conflicts of the early-seventeenth century in fact concerned the
boundaries of the king’s absolute prerogative power.²³ But such details are not
now in issue. Since our primary concern is to understand its general character,
three preliminary points might be made. First, that the existence of the absolute
prerogative, one which derives from the distinction that the medieval scholastics
made in theology between God’s potentia absoluta and potentia ordinata,²⁴ in no
way suggests that such powers are unbounded.²⁵ The absolute prerogative refers
to an autonomous power of the king to govern, not arbitrarily to undermine
the established legal order. It is a power assigned to the king—by fundamental
law—to determine according to ‘reason of state’. Secondly, that it is in the nature
of this governmental function that aspects of it must remain secret and be con-
ducted free from public gaze.²⁶ And, thirdly, that these ‘mysteries of state’ have
always been connected to—and also impose limits on—the legal order.²⁷
The critical question with respect to governmental power is the extent to which
these features of the prerogative have been carried over into modern constitu-
tional arrangements. After the seventeenth-century conflicts had taken their
²² James VI and I, ‘Speech to Star Chamber of 20 June 1616’ in his Political Writings Johann P
Somerville (ed) (Cambridge: Cambridge University Press, 1994), 204–228, 212–214.
²³ In addition to Bate’s Case, above n 21, they concerned the Five Knight’s Case (1627) 3 St Tr
1 (king’s right to arrest on grounds of reason of state, without specifying any particular cause)
and Hampden’s Case (1637) 3 St Tr 825 (king’s right to levy taxes without consent of Parliament,
pleading necessity). Each of these actions was—not surprisingly given the nature of their appoint-
ments—determined by the judiciary in the king’s favour. See Adam Tomkins, Our Republican
Constitution (Oxford: Hart Publishing, 2005), 74–87.
²⁴ Francis Oakley, ‘Jacobean Political Theology: The Absolute and Ordinary Powers of the
King’ (1968) 29 Journal of the History of Ideas 323–346, 334.
²⁵ Francis Oakley, ‘The Absolute and Ordained Power of God and King in the Sixteenth and
Seventeenth Centuries: Philosophy, Science, Politics, and Law’ (1998) 59 Journal of the History of
Ideas 669–690, 669: ‘According to the first of these understandings, embedded in the classical
formulation given to the distinction by Albertus Magnus, Thomas Aquinas, William of Ockham,
and many other later thinkers, the term potentia absoluta was used simply to denote God’s power
in itself, taken in abstracto and without reference to the orders of nature and grace he has actually
willed de potentia ordinata to establish. There was no question, that is, of the absolute power’s being
understood as a presently-active power by means of which God intervenes in the world to act apart
from or set aside the order established by the ordained power’.
²⁶ Francis Bacon, The Advancement of Learning [c1605] Arthur Johnson (ed) (Oxford: Clarendon
Press, 1974), Bk 2, para 47: ‘Concerning Government, it is a part of knowledge secret and retired
in both these respects in which things are deemed secret; for some things are secret because they
are hard to know, and some because they are not fit to utter. We see all governments are obscure
and invisible . . . even unto the general rules and discourses of policy and government there is due
a reverent and reserved handling’. On the ways such claims were played out in Parliament, see
Geoff Baldwin, ‘Reason of State and English Parliaments, 1610–42’ (2004) 25 History of Political
Thought 620–641.
²⁷ Ernst H Kantorowicz, ‘Mysteries of State: An Absolutist Concept and its Late Mediaeval
Origins’ (1955) 48 Harvard Theological Review 65–91, esp 76: ‘The “Mysteries of State” were prac-
tically always bound to the legal sphere’.
course (civil war leading to the establishment of the commonwealth, and then
the restoration of the monarchy and Revolution of 1689), it was accepted in the
English system that the king’s prerogative was, in principle, subject to law.²⁸ In
practice, however, the great majority of these powers were retained by the law
of the constitution, and in their exercise the king was given very wide latitude.
Writing in the mid-eighteenth century, Blackstone noted that discussion of the
king’s prerogative was, in earlier times, thought ‘too delicate and sacred to be
profaned by the pen of a subject’. The topic ‘ranked among the arcana imperii’,
which were not to be inquired into by those who were not ‘initiated in its serv-
ice’, not least because they might ‘not bear the inspection of a rational and sober
inquiry’.²⁹ Although Blackstone implied that things had changed, when he came
to analyse the prerogative he conceded, in the very terms of his definition, the
special nature of these powers. ‘By the word prerogative’, he stated, ‘we usually
understand that special pre-eminence which the king hath, over and above all
other persons, and out of the ordinary course of the common law, in right of his regal
dignity’.³⁰
Blackstone’s authoritative mid-eighteenth century account of the king’s pre-
rogative highlights its absolutist qualities. He explains that ‘the law . . . ascribes to
the king, in his high political character . . . attributes of a great and transcendent
nature’. The law ‘ascribes to the king the attribute of sovereignty, or pre-eminence’,
which means that ‘no suit or action can be brought against the king, even in civil
matters, because no court can have jurisdiction over him’, that ‘by law the person
of the king is sacred even though the measures pursued in his reign be completely
tyrannical and arbitrary’, and it ‘ascribes to the king, in his political capacity, abso-
lute perfection’.³¹ The king is ‘not only the chief, but properly the sole, magistrate of
the nation; all others acting by commission from, and in due subordination to him’
and ‘in the exercise of lawful prerogative, the king is and ought to be absolute’, by
which he meant that the king ‘may reject what bills, may make what treaties, may
coin what money, may create what peers, may pardon what offences he pleases:
unless where the constitution hath expressly, or by evident consequence, laid down
some exception or boundary’.³²
After the 1689 Revolution, the king’s prerogatives became subject to the legis-
lative power of the Act of Parliament. But the formal position under ‘the law of the
²⁸ Cf William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press,

1765), vol 1, 231: ‘The limitation of the regal authority was a first and essential principle of all the
Gothic systems of government established in Europe; though gradually driven out and overborne,
by violence and chicane, in most of the kingdoms on the continent’.
²⁹ Ibid, 230–231.
³⁰ Ibid, 232 (emphasis supplied). Cf Dr John Cowell, Law Interpreter (1607) who defined the
prerogative as ‘that especial power, pre-eminence, and privilege that the king hath in any kinde,
over and above the ordinarie course of the common law, in the right of his crowne’. Cited in WS
Holdsworth, A History of English Law (London: Methuen, 1924), vol 5, 22. Holdsworth notes that
‘Blackstone copied from it [sc. Cowell] his definition of the Prerogative, with only a slight (though
a very crucial) verbal alteration’.
³¹ Blackstone, above n 28, 234, 235, 238. ³² Ibid, 243.
British constitution’ was that the king retained a pivotal position. As Blackstone
recognizes, the constitution did impose actual restraints on the manner in which
the king’s prerogatives were exercised, and provided remedies for their abuse.³³
Such limitations could properly be appreciated, however, only by moving beyond
the formality of Blackstone’s legal method. It required the adoption of a broader
perspective—that of droit politique. This approach was given much greater prom-
inence in one of the works that exercised a powerful influence on Blackstone’s
thought: Montesquieu’s great treatise on The Spirit of the Laws.
Montesquieu had noted how although in a monarchy ‘the prince is the source
of all political and civil power’, the ‘fundamental laws’ of this type of regime
‘necessarily assume mediate channels through which power flows’. If in the state
there is ‘only the momentary and capricious will of one alone’, he argues, ‘nothing
can be fi xed and consequently there is no fundamental law’; and this would be
not monarchy but despotism.³⁴ This distinction between despotic and monar-
chical states rests ultimately on the fact that ‘in despotic states the prince himself
can judge’, something that cannot occur in monarchies.³⁵ Montesquieu is here
invoking the distinction between the king’s ordinary and absolute prerogatives.
He accepts that the form that such limitations on the prince’s powers take will
vary according to the nature of the regime. In monarchical states, for example,
‘power is limited by that which is its spring; I mean honour, which reigns like a
monarch over the prince and the people’.³⁶ But Montesquieu does not doubt that
this type of limitation forms an aspect of the fundamental laws—the ‘necessary
relations’ of the public sphere.³⁷
Montesquieu recognizes that in monarchies the king must remain the symbol
of law and justice, and he accepts the necessity of the king maintaining preroga-
tive powers to govern.³⁸ The point is that in monarchical states the constitution
(the fundamental law) is maintained by its mediating forms. Matters of civil
³³ Ibid. The main remedies were petition or actions against ministers exercising prerogative
powers in the king’s name (ibid, 236–237). But he alluded to ‘fundamental law’ when, in a ref-
erence to James II’s attempts to subvert the constitution, he stated: ‘I do not now speak of those
extraordinary recourses to first principles, which are necessary when the contracts of society are
in danger of dissolution, and the law proves too weak against the violence of fraud or oppression’
(ibid, 243).
³⁴ Montesquieu, The Spirit of the Laws [1748] Anne M Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (eds) (Cambridge: Cambridge University Press, 1989), Bk 2, ch 4, 17–18.
³⁵ Ibid, Bk 6, ch 5, 78.
³⁶ Ibid, Bk 3, ch 10, 30. When Blackstone refers to petitions and even action against ministers,
it is the principle of honour that is being invoked.
³⁷ Ibid, Bk 1, ch 1, 3. See further Martin Loughlin, The Idea of Public Law (Oxford: Oxford
³⁸ Blackstone, above n 28, Bk 11, ch 6: ‘If the executive does not have the right to check the
enterprises of the legislative body, the latter will be despotic, for it will wipe out all the other
powers, since it will be able to give to itself all the power it can imagine. But the legislative power
must not have the reciprocal faculty of checking the executive power. For, as the executive has the
limits of its own nature, it is useless to restrict it; besides, executive power is always exercised on
immediate things’.
right, such as rights of property, should not be determined by ‘principles of politi-

cal right’;³⁹ but similarly matters of political right should not be decided by the
rules of civil right.⁴⁰ Montesquieu here is specifying the logic through which
the British constitution was modernized: it had maintained the form of a mon-
archy, while evolving into a disguised republic. The king maintained his abso-
lute prerogative powers while being restricted and guided in their exercise by the
operation of ‘intermediate powers’. The British constitution functioned by main-
taining at its core a tension between a Romanist law of the constitution and a set
of Gothic practices.⁴¹ By maintaining this tension between positive laws and its
conditioning factors, the British constitution upheld the ‘spirit of the laws’.
II. Locke on the Prerogative
To what extent are these prerogative powers of government retained within

the framework of modern constitutional ordering? Before addressing this ques-
tion directly, it may be useful first to consider the way Locke conceptualizes
the relationship between executive powers and the constitution. Although
commonly regarded as one of the founders of modern constitutional ordering
based on the rule of law and a separation of powers, Locke’s position on the
executive is more nuanced than the standard liberal account suggests. While
adopting the principle of legislative supremacy, Locke also accepts the need for
the executive to maintain extensive prerogative powers. Recognizing there are
many things that the law cannot provide for, Locke contends that ‘the good of
Society requires, that several things should be left to the discretion of him, that
has the Executive Power’.⁴² Locke’s political analysis demonstrates that ‘the
modern constitution and the modern executive are mutually dependent and yet
antithetical’.⁴³ By showing how each of these elements needs and yet opposes
the other, Locke’s analysis reveals the political dynamic that drives modern
constitutional ordering.
³⁹ Ibid, Bk 26, ch 15.

⁴⁰ Ibid, Bk 26, ch 16: ‘It is ridiculous to decide the rights of kingdoms, nations, and the universe
by the same maxims used to decide among individuals a right concerning a drain pipe’ (at 512).
⁴¹ Ibid, Bk 11, ch 6, 166: ‘the English have taken their idea of political government from the
Germans. This fine system was found in the forests’. For an account of the prerogative rooted in this
distinction, see John Allen, An Inquiry into the Rise and Growth of the Royal Prerogative in England
(London: Longmans, new edn, 1849).
⁴² John Locke, Two Treatises of Government [1680] Peter Laslett (ed) (Cambridge: Cambridge
University Press, 1988), ii, §159.
⁴³ Harvey C Mansfield, Jr, Taming the Prince: The Ambivalence of Modern Executive Power
(Baltimore: Johns Hopkins University Press, 1993), 181. Although Locke was one of the first
thinkers to address the issue of executive power, it does have canonist roots: see JH Burns, ‘Regimen
Medium: Executive Power in Early–Modern Political Thought’ (2008) 29 History of Political
Thought 213–229.
Locke promotes a theory of limited government. He argues that ‘the first
and fundamental positive Law of all Commonwealths, is the establishing of the
Legislative Power’ and ‘the first and fundamental natural Law, which is to govern
even the Legislature itself, is the preservation of Society, and (as far as will con-
sist with the public good) of every person in it’.⁴⁴ Although the legislature is ‘the
supreme power’ within the commonwealth, it has ‘no other end but preservation’;
it can therefore ‘never have a right to destroy, enslave, or designedly to impoverish
the Subjects’.⁴⁵ Further, the legislature ‘cannot assume to itself a power to Rule
by extemporary Arbitrary Decrees, but is bound to dispense Justice, and decide
the Rights of the Subject by promulgated standing Laws, and known Authorised
Judges’.⁴⁶ For Locke, the rule of law means primarily that society is governed by
‘standing rules’ enacted by the legislature and enforced by an independent judi-
ciary. These rules are designed to secure the property rights of individuals and
promote the well-being of the people.
This principle of the rule of law (ie, the rule of the law) is bolstered by the
desirability of separating legislative and executive power. The exercise of execu-
tive power is not a mechanical task: positive laws take effect in the world only
through the acts of executors and, whether undertaken by governmental or judi-
cial officers, this requires the use of judgment. Further, Locke argues that this
executive power is closely related to what he calls the federative power: the power
to make war and peace, treaties and alliances. Although these two powers—the
executive, which secures the execution of the laws within the state, and the feder-
ative, which concerns ‘the management of the security and interest of the public
without’—are distinct in themselves, they are ‘always almost united’.⁴⁷ The best
guarantee of moderate and limited government, Locke contends, is to keep the
legislative and the executive–federative powers of the state in separate hands.⁴⁸
This exposition reveals the basis of Locke’s reputation as a founder of consti-
tutional government. But when the nature of the executive–federative power is
examined more carefully, we see that this claim is not so straightforward. Locke
accepts that the nature of the federative power is such that it is ‘much less capable
to be directed by antecedent, standing, positive Laws, than the Executive; and
so must be left to the Prudence and Wisdom of those whose hands it is in, to be
managed for the public good’.⁴⁹ The significance of this claim is revealed once we
turn directly to Locke’s treatment of the prerogative power.
Prerogative is that reservoir of authority vested in the ruler. It is ‘nothing but
a Power in the hands of the Prince to provide for the public good, in such Cases,
which depending upon unforeseen and uncertain Occurrences, certain and
unalterable Laws could not safely direct’. Its legitimating principle is salus populi
suprema lex esto. This principle, Locke contends, ‘is certainly so just and funda-
mental a Rule, that he who sincerely follows it cannot dangerously err’. And it
⁴⁴ Locke, above n 42, §134 (emphasis supplied). ⁴⁵ Ibid, §135.

⁴⁶ Ibid, §136. ⁴⁷ Ibid, §147. ⁴⁸ Ibid, §159. ⁴⁹ Ibid, §147.
follows that ‘whatsoever shall be done manifestly for the good of the People, and
the establishing the Government on its true Foundations, is, and always will be
just Prerogative’.⁵⁰
Locke claims that when the legislative and executive powers are separated, ‘the
good of society requires, that several things should be left to the discretion of him,
that has the Executive Power’.⁵¹ The main reason for the existence of this discre-
tionary power is that the legislature, having a limited grasp on what the future
holds, is often unable to foresee by enactment of rules ‘all that may be useful to
the Community’. In this situation, ‘the Executor of the Laws, having the power
in his hands, has by the common Law of Nature, a right to make use of it, for
the good of the Society, in the many Cases where the municipal Law has given
no direction’. That gives the executor a degree of latitude. But the exercise of this
judgment is required not only when the legislature is silent. It is also ‘fit that the
Laws themselves should in some Cases give way to the Executive Power, or rather
to this Fundamental Law of Nature and Government’. Many things may happen
in which ‘a strict and rigid observance of the Laws may do harm’ and then it is
right that ‘the Ruler should have a Power, in many Cases, to mitigate the severity
of the Law’.⁵² This general power ‘to act according to discretion, for the public
good, without the prescription of the Law, and sometimes even against it, is what
is called Prerogative’.⁵³
We are now able to reconstruct Locke’s framework of government. Arguing
that there was a time when ‘the Government was almost all Prerogative’,⁵⁴ Locke
recognizes not only that the establishment of the supremacy of the legislative
power of rule-making marks an advance, but that there is an original power of
governing, known as the prerogative power. Locke then follows an orthodox line
of analysis drawn from English constitutional history. Thus, the establishment of
the legislative supremacy of a representative law-making body, together with the
enforcement of their rules by ‘authorized’—and independent—judges, marks
the institutionalization and regularization of what is known as the ordinary (or
legal) prerogative powers. With the institutionalization of these law-making and
adjudicative powers, the ‘rule of law’ is realized. But what the rule of law means
for Locke is ‘the rule of the law-making power, not the ascendancy or inviolabil-
ity of certain laws’.⁵⁵ This is, claims Mansfield, ‘the rule of the men who make the
laws’,⁵⁶ though to be faithful to Locke’s scheme it must be added that their power
to rule is restricted to the promulgation of general standing rules.
This institutionalization of the ordinary prerogative powers of government
still leaves intact the absolute (or regal) prerogative powers of government. These
prerogatives confer on the ruler a broad discretionary power of action. The ruler
undertakes three distinct though related functions: the executive power, which
involves the power of putting laws into effect and maintaining law and order; the
⁵⁰ Ibid, §158. ⁵¹ Ibid, §159 (emphasis supplied). ⁵² Ibid.

⁵³ Ibid, §160. ⁵⁴ Ibid, §162. ⁵⁵ Mansfield, above n 43, 200. ⁵⁶ Ibid.
federative power, which concerns the conduct of foreign relations; and the dis-
cretionary governmental powers to act extra et contra legem. All three involve the
exercise of prerogative power, though the latter two especially engage the abso-
lute prerogative power. This absolute prerogative is a legally unregulated power,
though this means that its mode of exercise, rather than the limits of its authority,
remains solely a matter for government.
What is critical to Locke’s enterprise is, as Dunn recognizes, the problem
of ‘how to relate the functional necessity of binding prerogative power, power
which is by definition in some measure legally indeterminate in its exercise, with
the social and legal control of this power’.⁵⁷ The problem is not easily resolvable:
‘It is because the sorts of political action which cannot adequately be prescribed
by general rules may be, indeed characteristically are, those in which the ends
of political society are most at risk, those which most demand the deployment
of force, that there has to be a special power of this sort’.⁵⁸ And it is precisely
because the basis for its deployment are the ‘ends of political society’ that this is
a power, based on reason of state, which cannot be exercised in accordance with
standing rules.
Locke’s account of the framework of government operates through the logic
of norm and exception. There is an ‘ordinary’ sovereign authority, the legislative
authority, which holds the supreme power of rule-making. But since life cannot
be governed entirely by general rules, the prince is required to act, both to avoid
injustice flowing from strict adherence to rules and to achieve justice in those
situations that fall within the gaps, silences, and indeterminacies of the rules.
Since the exercise of these powers is, as a matter of sociological necessity, inca-
pable of being structured by clear rules,⁵⁹ there is a need for an ‘extraordinary’
sovereign.⁶⁰ In the normative frame of positive law, it might be said, the legisla-
ture is the sovereign authority, and is vested with the final say. But in the frame of
political reality, it is ‘the prince’ (otherwise, prime minister or president) whose
word rules.
Locke’s scheme, explains Mansfield, ‘encompasses what cannot be subject
to theory; it anticipates changes that cannot be anticipated; it contains the
⁵⁷ John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the
‘Two Treatises of Government (Cambridge: Cambridge University Press, 1969), 150.
⁵⁸ Ibid (emphasis in original).
⁵⁹ Locke even states: ‘the Trust of Prerogative (which is an Arbitrary Power in some things left
in the Prince’s hand to do good, not harm to the People)’: Locke, above n 42, §210 (emphasis
supplied).
⁶⁰ Cf Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922] George
Schwab (trans) (Chicago: University of Chicago Press, 2005), 5: ‘Sovereign is he who decides on the
exception’. Schmitt notes that: ‘The exception was something incommensurable to John Locke’s
doctrine of the constitutional state and the rationalist eighteenth century. The vivid awareness of
the meaning of the exception that was reflected in the doctrine of natural law of the seventeenth
century was soon lost in the eighteenth century, when a relatively lasting order was established’
(ibid, 13–14).
extraconstitutional within the constitution’.⁶¹ In this respect, it highlights a gen-

eral feature of modern constitutions: ‘its combination of reason with the neces-
sity that resists reason’.⁶² Pasquino makes a similar observation when he notes
that, for Locke, ‘government by law is not the only legitimate government’.⁶³
That is, legitimacy is not reducible to legality: ‘The principle of the rule of law
(Rechtssicherheit) cannot exclude another (exceptional) modality of government
that refers back to the other principle: Salus populi suprema lex’.⁶⁴ These observa-
tions are undoubtedly correct. But it should also be acknowledged that these two
aspects of sovereign authority—of constitutional and extra-constitutional action,
of law and prerogative—can be drawn into some form of reconciliation once we
make a distinction between positive law and droit politique.⁶⁵
Locke contended that both aspects of sovereign authority are governed by
what he called the ‘fundamental natural law’. That is, the prerogative powers of
the prince—just like the supreme power of law-making—can never be used to
‘destroy, enslave or designedly to impoverish the Subjects’.⁶⁶ Both powers must
be used to promote the public good. While the exercise of the absolute preroga-
tive power may not be subject to positive law, it remains subject to the criterion of
salus populi, of reason of state. Locke here was doing little more than elaborating
Chief Baron Fleming’s judgment in Bate’s Case, albeit in altered constitutional
circumstances. The prerogative powers of government are intrinsic to the office
of the ruler and cannot in their mode of exercise be subjected to the authority of
general rules. The manner of their exercise must remain a matter of trust,⁶⁷ to be
exercised by the ruler in accordance with the precepts of prudence—that is, in
accordance with the precepts of droit politique.
III. The Executive within Modern Republican Government
Locke’s Second Treatise influenced the deliberations of the framers of the American
Constitution. Nevertheless, his argument on the nature of executive power—a
prerogative power standing outside the law of the constitution—was unlikely
to prove acceptable to those who had rebelled against what they perceived to be
⁶¹ Mansfield, above n 43, 204. ⁶² Ibid.

⁶³ Pasquale Pasquino, ‘Locke on King’s Prerogative’ (1998) 26 Political Theory 198–208, 201.
⁶⁴ Ibid, 201–202.
⁶⁵ The most recent study also fails to draw out this point: Clement Fatovic, ‘Constitutionalism
and Contingency: Locke’s Theory of Prerogative’ (2004) 25 History of Political Thought 276–297.
It concludes: ‘Every system of government dedicated to the rule of law must sometimes yield to the
irrepressible exigencies of politics’.
⁶⁶ Locke, above n 42, §135.
⁶⁷ Locke notes that governments are dissolved ‘when the Legislature, or the Prince, either of
them act contrary to their Trust’ (ibid, §221). And to the question, ‘Who shall judge whether the
Prince or Legislative act contrary to their Trust?’, Locke (ibid, §240) answers: ‘The People shall be
Judge’.
abuses of the prerogative powers of the English Crown. The framers accepted the
necessity of dividing the powers of government between the legislative, execu-
tive, and judicial functions. But some went further in their embrace of the pre-
cepts of liberal constitutionalism, and argued that there was no need to include
any arrangement for executive powers in the Constitution. The executive was, in
the words of Roger Sherman, ‘nothing more than an institution for carrying the
will of the Legislature into effect’.⁶⁸ Rather than being an original power, it was
only the minor premiss in a practical syllogism.⁶⁹ ‘Had Americans not learned
the history of the Long Parliament and the dicta of Montesquieu so well’, com-
ments Rakove, ‘they might well have moved to deconstitutionalize the executive
entirely, leaving the legislature to delegate executive tasks as it saw fit’.⁷⁰ But the
framers did accept that ‘a government ill-executed, whatever it may be in theory,
must be, in practice, a bad government’.⁷¹ Their challenge was therefore to bring
this governmental power into the structure of the Constitution.
This was achieved, though the solution was not unambiguous. One of the
greatest achievements of the American Constitution, Mansfield notes, is to
have established ‘the first republic with a strong executive that is consistent
with republicanism’.⁷² The Constitution states that: ‘The executive Power shall
be vested in a President of the United States of America’.⁷³ But although it lists
some of the specific powers of the president—ranging from commander in chief
of the armed forces through to the power to appoint government officers—the
Constitution nowhere defines with any degree of precision what the executive
power encompasses. The nature of the office of the president is the product of
practice rather than formal designation.
There is, conceded the framers, ‘hardly any part of the system which could
have been attended with greater difficulty’ than the executive department of
the government.⁷⁴ Acknowledging ‘the aversion of the people to monarchy’, the
framers had somehow to devise a scheme for a ‘vigorous executive’ that would
not be inconsistent with ‘the genius of republican government’.⁷⁵ Hamilton
⁶⁸ Roger Sherman, 1 June 1787, in Records of the Federal Convention of 1787; cited in Jack
Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage
Books, 1996), 256.
⁶⁹ See also Immanuel Kant, Metaphysical Elements of Justice [1797] (Part I of the Metaphysics of
Morals; known as the Rechtslehre) John Ladd (trans) (Indianapolis: Hackett, 1999), §45: ‘The sov-
ereign authority resides in the person of the legislator; the executive authority resides in the person
of the ruler (in conformity to law), and the judicial authority (which assigns to everyone what is his
own by law) resides in the person of the judge. . . . These three parts are like the three propositions
in a practical syllogism: the law of the sovereign Will is like the major premise; the command to act
according to the law is like the minor premise, that is, it is the principle of subsumption under the
Will; and the adjudication (judicial sentence) that establishes the actual Law of the land for the case
under consideration is like the conclusion’.
⁷⁰ Rakove, above n 68, 252.
⁷¹ The Federalist Papers, above n 2, No 70 (402) (Hamilton).
⁷² Mansfield, above n 43, 247. ⁷³ US Constitution, Art 2(1).
⁷⁴ The Federalist Papers, above n 2, No 67 (Hamilton) (389).
⁷⁵ Ibid, Nos 67 (389), 70 (402).
argued that good government requires ‘energy in the executive’ for the purposes
of protecting the community from foreign attack, ensuring effective administra-
tion of the laws, and for securing liberty against ‘the assaults of ambition, of fac-
tion, and of anarchy’. The preconditions for achieving energy in the executive are
‘unity, duration, adequate provision for support, and competent powers’.⁷⁶ The
prerogative powers of the hereditary monarch would, it appears, be retained. But
somehow they had to be republicanized.
One obvious method of republicanizing the executive was to make the presi-
dency an elective office. In many ways this merely exacerbated the difficulties.
The president was brought within the frame of the Constitution, but if a vigor-
ous executive is intended and the office is elective, then, contrary to the framers’
intentions, it would inevitably lead to the growth of political parties and to the
politicization of government itself.⁷⁷ The effect of this argument was to bring
the tensions between legislature and executive that Locke had identified into
the frame of the Constitution itself. This raised a major difficulty: if both the
legislative and the executive are elective offices, which one stands as the most
authoritative representative of the will of the people? Does not the unity of the
office of the president in fact constitute the clearest expression of democracy,
with the Congress being better understood to be an expression of liberalism (ie,
as the vehicle for deliberation among contending visions of the public good)?⁷⁸
Whatever the answer, it seemed likely that the relationship between legislature
and executive in modern government would be rather different from that of the
theory of liberal constitutionalism.
The federalists were conscious of the problem. They recognized, first, that a
strong union was essential for the purpose of maintaining ‘the peace and lib-
erty of the States’ and as a ‘barrier against domestic faction and insurrection’.⁷⁹
But to achieve this they then accepted the necessity of making a distinction
between a democracy and a republic. Their aim was to show how a modern
republic was compatible with the existence of a strong executive power. The
former issue—distinguishing a modern republic from a ‘pure democracy’—
has already been examined.⁸⁰ The technique adopted by the federalists was
⁷⁶ Ibid, No 70.
⁷⁷ Rakove, above n 68, 268: ‘No feature of the Constitution stimulated the organization of pol-
itical parties more than the recognition that control of the national government depended on con-
trol of the presidency. That was hardly the result the framers intended, nor was it even an outcome
that they could plausibly imagine’.
⁷⁸ Th is becomes a critical issue in all modern governmental systems, whether based on a
presidential model or a regime of parliamentary government. See, eg, Max Weber, ‘Parliament
and Government in Germany under a New Political Order’ [1918] in his Political Writings Peter
Lassman and Ronald Spiers (eds) (Cambridge: Cambridge University Press, 1994), 130–271; Carl
Schmitt, The Crisis of Parliamentary Democracy [1923] Ellen Kennedy (trans) (Cambridge, MA:
MIT Press, 1988); Bill Scheuerman, ‘Is parliamentarism in crisis? A reply to Carl Schmitt’ (1995)
24 Theory and Society 135–158.
⁷⁹ The Federalist Papers, above n 2, No 9 (Hamilton) (118).
⁸⁰ See above ch 10, 283–284.
to appropriate republicanism for modernity by presenting ancient republics
as democracies that suffered from the vice of factionalism. Only then were
they able to supply the remedy: the principle of representation, through which
human passions can be transformed into reasoned deliberation.
It was in the context of this argument that Madison claimed that it was neces-
sary to ‘enable the government to control the governed’.⁸¹ And in order to realize
this objective, a strong executive power was required.⁸² This, then, is another
important feature of modern republican government that stands in stark con-
trast to the ancient idea of republicanism.⁸³ Republican government required the
adoption of institutional checks and balances between the legislature, executive,
and judiciary in order to ensure that it was able to control itself. But this mecha-
nism itself assumed the existence of a strong executive power.
The main problem with the institutional solution of checks and balances is
that it is built on the assumption that government would play a limited role in
social life. The purpose of the constitution was to quell passions, moderate fac-
tions, and balance interests so that a form of equilibrium among these distinct
and separated powers would be realized. Montesquieu recognized as much: ‘The
form of these three powers should be rest or inaction’. But he went on to explain
that, ‘as they are constrained to move by the necessary motion of things, they will
be forced to move in concert’.⁸⁴ This may be possible but, left to its own devices,
the constitution seems more likely to operate in a way that brings stalemate rather
than unity in movement. The challenge for modern constitutions comes with the
realization that the enfranchised people look to government to provide solutions
to social problems. If government is required ‘to plan and undertake extensive
and arduous enterprises for the public benefit’, and these enterprises require ‘con-
siderable time to mature and perfect’,⁸⁵ this role cannot be assumed without a
powerful and permanent executive being established.
It is at this moment that the failure to define and limit the nature of execu-
tive power presents itself as a major problem. It first became manifest in 1793
when President Washington declared the United States neutral in the war
⁸¹ The Federalist Papers, above n 2.

⁸² See, eg, ibid, No 71 (Hamilton) (409–410): ‘There are some who would be inclined to regard
the servile pliancy of the executive to a prevailing current, either in the community or in the legis-
lature, as its best recommendation. But such men entertain very crude notions, as well of the pur-
poses for which government was instituted, as of the true means by which the public happiness
may be promoted. . . . When occasions present themselves in which the interests of the people are at
variance with their inclinations, it is the duty of the persons whom they have appointed to be the
guardians of those interests to withstand the temporary delusion in order to give them time and
opportunity for more cool and sedate reflection’.
⁸³ Mansfield, above n 43, 257: ‘By finding a place for the necessities of government within the
framework of government itself, the Constitution corrects the foolish optimism of republicanism
which thinks, in essence, that men can live by the laws they choose and never have to bow to the
necessities they do not choose, or learn from their experience of them’.
⁸⁴ Montesquieu, above n 34, Bk 11, ch 6, 164.
⁸⁵ The Federalist Papers, above n 2, No 72 (Hamilton) (414).
IV. Government Growth, Executive Power 391
between Britain and France. Hamilton had argued that since this proclamation
was neither legislative nor judicial in nature it must ‘of necessity’ be an executive
act. His argument was founded on the claim that ‘since the government must
be able to do anything, if two of the branches do not possess a power, it must
reside in the third’.⁸⁶ From this analysis, Mansfield draws the general conclusion
that ‘the executive power, in the singular, can be illustrated, but it cannot be
enumerated because it cannot be exhausted’.⁸⁷ Once accepted, this proposition
rapidly acquires a heightened significance, especially because of the rapidity of
the growth in governmental responsibilities in the modern era.
IV. Government Growth, Executive Power,

and Modern Constitutions
The impact of government growth on the general functioning of the American
Constitution has already been briefly considered.⁸⁸ It is necessary now to con-
sider more specifically the implications for the executive function. The argument
to be made rests on three basic propositions. First, that modern constitutions
founded on the separation of powers were devised on the assumption of lim-
ited government, and this assumption has not been borne out by the facts of
modern political life. Secondly, that the enhanced role of government in social
life reveals itself primarily in the acquisition of more extensive powers by the
so-called executive branch. Thirdly, that, being a purely skeletal framework,
the Constitution contains many gaps and ambiguities and it is the president in
particular, and the executive branch in general, that ‘claims the silences of the
Constitution’.⁸⁹ In the contemporary world, modern republican constitutions
have become governmentalized.⁹⁰
⁸⁶ Mansfield, above n 43, 276. ⁸⁷ Ibid.

⁸⁸ See above, ch 10, 297–305.
⁸⁹ Richard M Pious, Th e American Presidency (New York: Basic Books, 1979), 333. Th is argu-
ment parallels Bismarck’s Lückentheorie. When confl icts arose during the 1860s between crown
and parliament over the budget in circumstances where the Constitution provided no obvious
remedy, Bismarck argued that this dispute could not be resolved by the court since the judiciary
would then claim the law-making power. The ‘holes’ in the Constitution, Bismarck claimed,
must be fi lled by the government. See Otto Pfl anze, ‘Juridical and Political Responsibility in
Nineteenth-Century Germany’ in Leonard Krieger and Fritz Stern (eds), Th e Responsibility of
Power: Historical Essays in Honor of Hajo Holborn (London: Macmillan, 1968), 162–182, esp
179–180.
⁹⁰ See Rousseau’s argument, above ch 4, 117–119. Th is is a facet of a more general
change in the status of the executive in the post-revolutionary period. Note, eg, the comments of
Jacques-Guillaume Thouret, one of the principal architects of the French Constitution of 1791:
‘When after a long period of despotism, a nation wakes up and gives itself a new constitution, its
chief enemy in such circumstances is the executive power, since it is the executive which is cor-
rupted and the agent of oppression. . . . But when the revolution is over and it is time to establish
true government, the constitution is not merely a set of written clauses, but the living mechanism
of the political organisation. We believe that it is a serious mistake to continue to treat the executive
The effects of modernization reveal themselves most clearly in the growing
conviction that the main task of government is to promote ‘social progress’. This
argument is tied to the emergence of democracy as the legitimating principle of
modern government. It manifests itself in a series of political movements which
emerged in most advanced industrialized states during the late-nineteenth/early-
twentieth centuries under the banners of ‘social democracy’, ‘progressivism’, ‘new
liberalism’, or ‘solidarity’.⁹¹ The common objective was to place the system of gov-
ernment at the service of the ‘common people’.⁹² With respect to the American
system of government, this spirit of progressivism is exemplified in the work of
Woodrow Wilson.
Wilson argued that the American Constitution had been designed as a
Newtonian mechanism establishing a series of checks and balances to prevent
governmental power from being exercised oppressively, and this was an altogether
inadequate way of conceiving the challenges faced by government in the mod-
ern state. The Constitution of the framers had become an obstacle to progress.
Wilson’s ambitious objective was to re-found the American regime by develop-
ing a new science of government for the progressive era. For this, the Newtonian
imagery had to be replaced with a Darwinian metaphor, whereby government
was able to evolve to meet its new responsibilities.⁹³
In his first book in 1885, Wilson had argued that this was the first generation
of Americans to ask ‘whether the Constitution is still adapted to serve the pur-
poses for which it was intended’. There has been, he claimed, ‘a vast alteration in
the conditions of government’, with the consequence that ‘the checks and bal-
ances which once obtained are no longer effective’. We are now ‘living under a
Constitution essentially different from that we have been so long worshipping as
our own peculiar and incomparable possession’. The 1787 document remains our
Constitution, ‘but it is now our form of government in name rather than in reality,
the form of the Constitution being one of nicely adjusted, ideal balances, whilst
as the enemy of the commonwealth and national liberty. Is not the executive power a power of the
nation, emanating from it like the legislative one?’ Cited in Pasquale Pasquino, ‘The constitutional
republicanism of Emmanuel Sieyès’ in Biancamaria Fontana (ed), The Invention of the Modern
Republic (Cambridge: Cambridge University Press, 1994), 107–117, 109.
⁹¹ See James T Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European
and American Thought, 1870–1920 (New York: Oxford University Press, 1986); Cécile Laborde,
Political Thought and the State in Britain and France, 1900–1925 (Houndsmills: Macmillan, 2000);
Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United
States and Britain, 1909–1926 (Oxford: Oxford University Press, 2002).
⁹² Woodrow Wilson, The New Freedom: A Call for the Emancipation of the Generous Energies of
a People (New York: Tauchnitz, 1913), 109: ‘the deepest conviction and passion of my heart is that
the common people, by which I mean all of us, are to be absolutely trusted’.
⁹³ Woodrow Wilson, Constitutional Government in the United States (New York: Columbia
University Press, 1908), 54–55: ‘The government of the United States was constructed upon the
Whig theory of political dynamics, which was a sort of unconscious copy of the Newtonian theory
of the universe. In our own day, whenever we discuss the structure or development of anything,
whether in nature or in society, we consciously or unconsciously follow Mr Darwin’.
the actual form of our present government is simply a scheme of congressional

supremacy’.⁹⁴
At this stage in his career, Wilson promoted the argument that Congress was
the ‘irresistible power of the federal system’, and that its power—a product of
party government that the framers could not have envisaged—had relegated
‘some of the chief balances of the Constitution to an insignificant role in the
“literary theory” of our institutions’.⁹⁵ The office of the President did not play
a prominent role in his scheme.⁹⁶ But perhaps the most significant aspect of his
thesis was the claim that the Constitution had now evolved beyond recognition.
‘There has been a constant growth of legislative and administrative practice, and
a steady accretion of precedent in the management of federal affairs’, and these
have ‘broadened the sphere and altered the functions of the government with-
out perceptibly affecting the vocabulary of our constitutional language’. The
American Constitution, he concluded, ‘is, scarcely less than the British, a living
and fecund system’.⁹⁷
In his later writing, Wilson built on the evolutionary theme and maintained
that modern government revolved round the figure of the president. The thesis
of Congressional Government, that modern government required the merging of
the legislative and executive functions, was superseded by the necessity of over-
coming legislative power by a strong executive. This marked a further stage in
a movement away from an emphasis on forms—on constitutions, on delibera-
tion, and on legislation—and towards action, that is, towards administration and
execution.⁹⁸ Wilson argued that the objects of government had now outstripped
their constitutional forms. The executive must be freed from the limitations of
the separation of powers doctrine. Modern government must possess the capacity
to adjust to the will of the people and the best means of achieving this enhanced
capacity is through disciplined political parties, effective cabinet government,
⁹⁴ Woodrow Wilson, Congressional Government: A Study in American Politics (Boston:

Houghton, Miffl in & Co, 1885), 5–6 (emphasis in original). Wilson’s thesis was much influenced
by the writing of Bagehot (see above ch 3, 100–101).
⁹⁵ Wilson, above n 94, 23.
⁹⁶ See, eg, ibid, 204: ‘The presidency is too little like a premiership and too much like a
superintendency’.
⁹⁷ Ibid, 7.
⁹⁸ Woodrow Wilson, ‘The Study of Administration’ (1887) 2 Political Science Quarterly
197–222, 198: ‘Administration is the most obvious part of government; it is government in action;
it is the executive, the operative, the most visible side of government; and is of course as old as
government itself. It is government in action, and one might very naturally expect to find that gov-
ernment in action had arrested the attention and provoked the scrutiny of writers of politics very
early in the history of systematic thought. But such was not the case. No one wrote systematically
of administration as a branch of the science of government until the present century had passed its
first youth and had begun to put forth its characteristic flower of systematic knowledge’. Wilson
goes on to note of this science: ‘It employs only foreign tongues; it utters none but what are to our
minds alien ideas. . . . It has been developed by French and German professors, and is consequently
in all parts adapted to the needs of compact states, and made to fit highly centralized forms of
government’ (ibid, 202).
and professional administration. The executive office presents itself as the crucial
pivot on which the conversion of the will of the people into effective governmen-
tal action revolves.
Wilson’s arguments radicalized Hamilton’s ideas about the need for an ener-
getic executive and a competent national administration. But there was an
important difference. Working under Montesquieu’s influence, Hamilton had
conceived strong executive power as being necessary for the purpose of constrain-
ing the more ambitious and popularist plans of the legislature. Wilson, by con-
trast, viewed the strong executive as an agency to be placed at the service of the
democratic imperative. This required a transformation of the role of the executive
envisaged under the Constitution, a development marked in Wilson’s work by
the fact that the chapter headed ‘The Executive’ in Congressional Government was
replaced in his later work on Constitutional Government in the United States by a
corresponding chapter entitled, ‘The President of the United States’.
The president, Wilson realized, could transcend the limits of the office under
the separation of powers doctrine and become more than a mere executive officer:
‘what used to be called the Government, we now speak of only as the “Executive”,
and regard as little more than an instrumentality for carrying into effect the laws
which our representative assemblies originate’.⁹⁹ In the imagination of the peo-
ple, however, the president has come to represent the office of government: ‘He
is the representative of no constituency, but the whole people’ and ‘if he rightly
interpret the national thought and boldly insist upon it, he is irresistible’.¹⁰⁰
Because the president has so few formal powers of presidential leadership under
the Constitution, he must rely on extra-constitutional procedure and action to
perform this role adequately. Wilson argued that the framers’ Constitution now
works only because of the existence of the party machines and that this party
system could now be kept responsible only through the actions of a strong presi-
dent.¹⁰¹ He similarly argued that the nation’s law-makers should now accept the
leadership of the president in the formation of legislative policy.¹⁰² The president
‘is becoming more and more a political and less and less an executive officer’.¹⁰³
By this, Wilson meant that the president’s executive powers are now held in
commission,¹⁰⁴ ‘while his political powers more and more centre and accumulate
upon him and are in their very nature personal and inalienable’.¹⁰⁵ The office of
the president is to be conceived primarily in terms of opinion leadership.
In his study of the presidency, Tulis argues that during the twentieth century
there emerged a ‘second constitution’ under whose auspices presidents seek to
govern. At the heart of this second constitution ‘is a view of statecraft that is
⁹⁹ Wilson, above n 93, 15. ¹⁰⁰ Ibid, 68. ¹⁰¹ Ibid, 214–216.
¹⁰² Ibid, 84. ¹⁰³ Ibid, 66–67.
¹⁰⁴ Ibid, 66: ‘In respect of the strictly executive duties of his office the President may be said to
administer the presidency in conjunction with the members of his cabinet, like the chairman of a
commission’.
¹⁰⁵ Ibid, 67.
in tension with the original Constitution—indeed, is opposed to the founders’

understanding of the political system’.¹⁰⁶ This second constitution ‘puts a pre-
mium on active and continuous presidential leadership of popular opinion’ and
‘is buttressed by several extra-Constitutional factors such as the mass media and
the proliferation of primaries as a mode of presidential selection’.¹⁰⁷ The primary
exponent of this type of argument—an argument reinforced by other leading
studies that have suggested the emergence of an ‘imperial presidency’—was
Woodrow Wilson.¹⁰⁸
Wilson’s argument expressed a general progressive mood about the nature of
modern government.¹⁰⁹ The Constitution was treated as being a product of time
and place and, far from being a complete system, ‘it takes none but the first steps
in organization’. Indeed, if it were ‘to go beyond elementary provisions’, it would
lose its essential characteristics of elasticity and adaptability: ‘The growth of the
nation and the consequential development of the governmental system would
snap asunder a constitution which could not adapt itself to the new conditions of
an advancing society’.¹¹⁰ The workings of the system of government thus become
more important than the forms of the Constitution. But government, Wilson
notes, is essentially ‘the organ of society, its only potent and universal instru-
ment’. The objects of government must therefore be the objects of society, a soci-
ety understood as ‘an organic association of individuals for mutual aid’ for the
purpose of ‘self-development’.¹¹¹ Revealing the Hegelian strain in his thinking,
Wilson concludes that self-development is best promoted through presidential
leadership: the public good is expressed in the executive leadership of the presi-
dent, who represents the spirit of the people.
Wilson provides a powerful explanation as to why the executive power, which
in the texts of modern constitutions presents itself as a limited function, becomes
the dominant authority in modern government systems. The revolutionary aspir-
ations of modern constitutions are not confined to a narrowly conceived public
¹⁰⁶ Jeff rey K Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987),
14.
¹⁰⁷ Ibid.
¹⁰⁸ See Tulis, ibid, 117–144. See also Richard E Neustadt, Presidential Power: The Politics of
Leadership (New York : Wiley, 1960); Arthur M Schlesinger, The Imperial Presidency (Boston:
Houghton Mifflin, 1973). For an early formulation, see Henry Jones Ford, The Rise and Growth of
American Politics: A Sketch of Constitutional Development (New York: Macmillan, 1898), 293: ‘The
truth is that in the presidential office, as it has been reconstituted since Jackson’s time, American
democracy has revived the oldest political institution of the race, the elective kingship’.
¹⁰⁹ Representative publications are: (United States) Herbert Croly, The Promise of American Life
(New York: Macmillan, 1909); (France) Léon Bourgeois, Solidarité (Paris: Colin, 1896); (Germany)
Eduard Bernstein, Die Voraussetzungen des Sozialismus und die Aufgaben der Sozialdemokratie
(Stuttgart: Dietz, 1899) [Eng trans Evolutionary Socialism 1909]; (United Kingdom) Beatrice
Webb and Sidney Webb, A Constitution for the Socialist Commonwealth of Great Britain (London:
Longmans, 1920).
¹¹⁰ Wilson, above n 94, 8–9.
¹¹¹ Woodrow Wilson, The State: Elements of Historical and Practical Politics (London: DC
Heath, 1899), 633.
sphere; with the coming of democracy, they extend their claims of liberty and
equality to the social sphere.¹¹² The predominant political task thus becomes
that of harnessing the institutions of government towards the fulfilment of these
objectives. ‘True’ freedom, it was argued, could not be realized without under-
taking collective action on a large scale and this requires not merely the enunci-
ation of rights, but the implementation of reforms.¹¹³ The key challenge was not
constitutional but administrative, and this could only be met through strong,
centralized, and united executive action. The eighteenth/nineteenth-century
relationship between progress, revolution, and constitution had been broken;
social progress in the nineteenth/twentieth centuries would depend primarily on
reform and governmental action.
V. Prerogative Transformed
Since the late-nineteenth century, the role of government has expanded consid-
erably. This has been a result of the assumption of responsibility for improving
social conditions by regulating economic activity and providing public services.
The balance of governmental powers significantly altered, and this has led in turn
to the formation of new ways of explaining the nature of the office of govern-
ment. Many of the emerging progressive political movements maintained that
existing constitutional protections served primarily to safeguard the interests of
the propertied classes; if social progress was to be furthered, they argued, such
bourgeois constitutions would have to be overcome.¹¹⁴ The hallmark of this new
scholarship was the rejection of the traditional philosophical analyses of consti-
tutional forms in favour of sociological investigations into the manner in which
governments actually exercise their powers. The methods of conceptual jurispru-
dence were subverted by ‘realist’ analysis.¹¹⁵
This tendency is seen not only in the United States, through the example of
Wilson and progressivism, but also across Europe. In Europe it took a variety
of political forms, including socialism, syndicalism, pluralism, authoritarianism,
¹¹² Note, eg the Preamble to the Weimar Constitution 1919: ‘The German people united in
its tribes and inspired with the will to renew and strengthen the Reich in liberty and justice, to
serve internal and external tranquility, and to promote social progress, has adopted this Constitution’
(emphasis supplied).
¹¹³ See Martin Loughlin, ‘The Functionalist Style in Public Law’ (2005) 55 University of Toronto
Law Journal 361–403.
¹¹⁴ See, eg, Karl Marx, A Contribution to the Critique of Hegel’s Philosophy of Right (1844): <http://
www.marxists.org/archive/marx/works/1843/critique–hpr/index.htm>. See also Lassalle, above
ch 7, 191; ch 8, 214.
¹¹⁵ For American trends, see: Morton White, Social Th ought in America: Th e Revolt
Against Formalism (London: Oxford University Press, 1976); Edward Purcell, Jr, Th e Crisis of
Democratic Th eory: Scientifi c Naturalism and the Problem of Value (Lexington: University of
Kentucky Press, 1973); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon
Press, 1995), chs 1–2.
and fascism. Notwithstanding their ideological differences, these movements—as

expressions of high modernism—agreed on the inadequacy of constitutional
models built on the foundation of classical liberalism. Illustrative of the general
juristic trend is Costantino Mortati’s analysis of the distinction between the for-
mal and material senses of constitution.¹¹⁶ Mortati rejects normativism and legal
positivism on the ground of their inability to offer an account of unity in a sub-
stantive sense. But he also criticizes both the decisionist theory of Schmitt and
the communitarian theory of Smend, in each case claiming that such theories
are unable to maintain stability: the former because it highlights the necessity
of decision without institutional constraint, and the latter because ‘the people’
as an existential entity are riven by conflict and can never form a homogene-
ous group.¹¹⁷ For Mortati, the entity which is able to combine substantive unity
with stability of institutional purpose—and which therefore lies at the core of the
material constitution—is the political party.¹¹⁸
Though Mortati can scarcely have known of it, his account closely parallels
Gramsci’s analysis of the rise of the ‘modern prince’.¹¹⁹ In such analyses, Bodin’s
‘marks of sovereignty’ or Locke’s concept of the prerogative power as ‘a Power in
the hands of the Prince to provide for the public good’ is placed at the service of a
disciplined political will, exercised by a political party in control of the machin-
ery of government, and geared towards the cause of progress. In this mode of
thought, liberal constitutional frameworks are retained, but they increasingly
perform symbolic functions. The real work of modern government is undertaken
through party networks, leading to the emergence of more centralized models of
government anchored by strong executive leadership. It is the president or prime
minister who speaks for the people and whose leadership, through the control of
disciplined political parties, is the means by which governmental powers can be
used to promote the cause of social progress.
This high-modernist model of government casts the relationship between pre-
rogative and law—between gubernaculum and jurisdictio—in a different light.
Respect for private rights remains of primary importance in providing a platform
¹¹⁶ Costantino Mortati, La Costituzione in Senso Materiale (Milan: Giuff rè, 1940). For English
language analysis, see: Massimo La Torre, ‘The German Impact on Fascist Public Law Doctrine—
Costantino Mortati’s Material Constitution’ and Giacinto della Cananea, ‘Mortati and the Science
of Public Law: A Comment on La Torre’ in Christian Joerges and Navraj Singh Ghaleigh (eds),
Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its
Legal Traditions (Oxford: Hart Publishing, 2003), 305–320, 321–335.
¹¹⁷ Mortati, above n 116, ch 1.
¹¹⁸ Ibid, ch 2.
¹¹⁹ Antonio Gramsci, ‘The Modern Prince’ in his Selections from the Prison Notebooks Quinton
Hoare and Geoff rey Nowell Smith (trans and eds) (New York: International Publishers, 1971),
123–205, esp 129: ‘The modern prince, the myth-prince, cannot be a real person, a concrete indi-
vidual. It can only be an organism, a complex element of society in which a collective will, which
has already been recognised and has to some extent asserted itself into action, begins to take con-
crete form. History has already provided this organism, and it is the political party—the first cell in
which there come together germs of a collective will tending to become universal and total’.
of security for the citizen, but such entrenched private rights should never be
allowed to override the exercise of governmental power aimed at the realization
of the common good—the promotion of an equality of rights for all.¹²⁰ If rights
are primarily expressed in law, then the capacity of government to realize the
common good is expressed through its prerogative powers, even if most of these
powers are now allocated through the legislative form.
Th is transformation in the nature of the prerogative powers of government
under modern conditions has given rise to a number of controversies concern-
ing the clash between private rights and public powers. Of these, two major
issues may be highlighted: the use of discretionary powers for social welfare
purposes, and the existence of emergency powers to deal with threats to the
security of the state.
The former issue concerns the ways in which modern governments have used
their (party-based) control of legislatures to enact legislation that gives broad
powers to executive bodies to regulate social and economic activity in the pub-
lic interest. From a constitutionalist perspective, these are troublesome powers,
not least because this type of legislation invariably confers extensive rule-making
powers on the executive and establishes administrative tribunals to handle dis-
putes concerning the implementation of these programmes. Critics claim that
by conferring legislative and judicial powers on executive bodies, such legislation
infringes the principle of the separation of powers and undermines the principle
of the rule of law. The key point to be highlighted here is that those who made
the claim that these practices lead to a ‘new despotism’ had failed to recognize
the extent to which the conditions of legitimacy of modern governmental action
were changing.¹²¹ The tensions between government’s discretionary powers and
protections of private rights became a central issue of controversy during the
twentieth century.¹²² But in western European regimes, these executive powers
¹²⁰ Exemplary is RH Tawney, The Acquisitive Society (London: Bell, 1921), 53–54: ‘The State
has no absolute rights; they are limited by its commission. The individual has no absolute rights;
they are relative to the function which he performs in the community of which he is a member,
because, unless they are so limited, the consequence must be something in the nature of private
war. All rights, in short, are conditional and derivative, because all power should be conditional
and derivative. They are derived from the end or purpose of the society in which they exist. They
are conditional on being used to contribute to the attainment of that end, not to thwart it. And this
means that, if society is to be healthy, men must regard themselves not as the owners of rights, but
as trustees for the discharge of functions and the instruments of a social purpose’.
¹²¹ Cf Lord Hewart, The New Despotism (London: Benn, 1929); Stafford Cripps, ‘Can Socialism
come by Constitutional Methods?’ in Christopher Addison (ed), Problems of a Socialist Government
(London: Gollancz, 1933), 35–66. Hewart’s rhetoric evokes the danger of James I’s claims, above
379–380, but the point of Cripps’ argument is that governmental powers are now being exercised
against the bastions of privilege and in favour of the majority of ‘ordinary’ people.
¹²² For the extreme case, see Ernst Fraenkel, The Dual State: A Contribution to the Theory of
Dictatorship (New York: Oxford University Press, 1941). Fraenkel’s thesis is that in National–
Socialist Germany there co-exists two states, the Prerogative State and the Normative State. These
‘are competitive and not complementary parts of the German Reich’ (at 46), wherein ‘normal life’
remains governed by legal norms but this sphere exists only to the extent that the Prerogative State
have now generally been regulated through statutory procedures and judicial
oversight.¹²³
The latter issue, the existence and use of emergency powers by government,
causes periodic concern, especially at moments of stress for constitutional
regimes. The issue has recently acquired a renewed prominence in the light of
adoption by many governments of post-9/11 counter-terrorism strategies. Th is
topic also raises large and complex matters, the details of which will not be
examined here. There are, however, two foundational questions that emergen-
cies throw into relief: first, the tension between the positive law of the constitu-
tion and political right; and, secondly, and more directly relevant to the subject
under consideration, the tendency of the executive, in times of stress, to assume
the general powers of government. These two issues are related, but should be
kept distinct.
The critical question concerning emergency powers has recently been posed
in these terms: ‘Can a state confronted with a violent emergency take steps nec-
essary to suppress the emergency while remaining faithful to the demands of
legality?’¹²⁴ The stance adopted by many jurists is that governments must strictly
comply with the law throughout times of stress, since to do otherwise would
destroy the integrity of legal order.¹²⁵ Others have adopted a more pragmatic
position. Invoking the maxims of salus populi suprema lex esto and ‘necessity
knows no law’ and drawing on the Roman practice of commissarial dictator-
ship, these scholars have recognized the need to suspend constitutional provi-
sions for the specific purpose of acting to defeat a threat to the state and with a
view to the speedy restoration of constitutional order.¹²⁶ Consider, for example,
Jefferson’s views:
A strict observance of the written laws is doubtless one of the high duties of a good citizen,
but it is not the highest. The laws of necessity, of self-preservation, of saving our country
permits and these limits ‘are not imposed from the outside; they are imposed by the Prerogative
State itself ’ (at 58).
¹²³ This is discussed further in ch 15 below.
¹²⁴ Victor V Ramraj, ‘No doctrine more pernicious? Emergencies and the limits of legality’
in Ramraj (ed), Emergencies and the Limits of Legality (Cambridge: Cambridge University Press,
2008), 3–29, 4.
¹²⁵ See, eg, David Cole, ‘The Priority of Morality: The Emergency Constitution’s Blind Spot’
(2004) 113 Yale Law Journal 1753–1800; David Dyzenhaus, The Constitution of Law: Legality in
a Time of Emergency (Cambridge: Cambridge University Press, 2006); Terry Nardin, ‘Emergency
logic: prudence, morality and the rule of law’ in Ramraj (ed), above n 124, 97–117. This stance has a
long lineage: see, eg, Ex parte Milligan 71 US 2 (1866), 120: ‘The Constitution of the United States
is a law for rulers and people, equally in war and in time of peace, and under all circumstances. No
doctrine, involving more pernicious consequences, was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great exigencies of government. Such a
doctrine leads directly to anarchy or despotism’.
¹²⁶ See Clinton L Rossiter, Constitutional Dictatorship: Crisis Government in the Modern
Democracies (Princeton, NJ: Princeton University Press, 1948); John Ferejohn and Pasquale
Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers’ (2004) 2 International
Journal of Constitutional Law 210–239.
when in danger, are of higher obligation. To lose our country by a scrupulous adherence
to the written law, would be to lose the law itself, with life, liberty, property and all those
enjoying them with us; thus absurdly sacrificing the end to the means.¹²⁷
Most modern constitutional regimes make formal provision for suspension of
constitutional guarantees in an emergency, though the threat is that rulers might
exploit such provisions and transform ‘constitutional dictatorship’ into ‘sovereign
dictatorship’.¹²⁸ But deciding to make no constitutional adjustment in times of
perceived threat carries its own dangers, not least that government will respond
by subterfuge, leading to a widening of the gap between constitutional norms
and governmental action, and undermining respect for constitutional ordering
itself.
Our concern here is less with the situational questions of political judgment,
but with the juristic frame through which these judgments are to be made. With
respect to this issue, the division lies between those who place their faith in strict
allegiance to positive law and those who acknowledge—even if only implicitly—
the working of droit politique. Many lawyers today fall into the former camp. In
his response to the critical question posed above, for example, Ramraj states: ‘Nazi
philosopher Carl Schmitt argued, notoriously, that it [the state] cannot [remain
faithful to the demands of legality]’.¹²⁹ This is not strictly correct. What Schmitt
claims is that a ‘jurisprudence concerned with ordinary day-to-day questions has
¹²⁷ Thomas Jefferson (1810): cited in Wilfrid E Rumble, ‘James Madison on the Value of Bills
of Right’ in J Roland Pennock and John W Chapman (eds), Constitutionalism: Nomos XX (New
York: New York University Press, 1979), 122–162, 126 (emphasis in original). See also AV Dicey,
Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th edn, 1915), 408:
‘There are times of tumult or invasion when for the sake of legality itself the rules of law must be
broken. The course which the government must then take is clear. The Ministry must break the
law and trust for the protection of an Act of Indemnity. A statute of this kind is . . . the last and
supreme exercise of Parliamentary sovereignty. It legalises illegality; it affords the practical solution
of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries, how
to combine the maintenance of law and the authority of the Houses of Parliament with the free
exercise of that kind of discretionary power or prerogative which, under some shape or other, must
at critical junctures be wielded by the executive government of every civilised country’ (emphasis
supplied).
¹²⁸ Article 48 of the Weimar Constitution is the most well-documented of these: see Peter C
Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice
of Weimar Constitutionalism (Durham, NC: Duke University Press, 1997), ch 6. For a contempor-
ary account, see Carl J Friedrich, ‘The Development of the Executive Power in Germay’ (1933) 27
American Political Science Review 185–203, 196–203. Friedrich’s analysis, published in April 1933,
concludes (unfortunately) that ‘we may say that Article 48 insures executive leadership in times of
stress and strain, but that the complex separation of powers and the elaborate system of checks and
balances established by the German constitution of 1919 remain in force. . . . [I]t is impossible to
forecast at present whether Germany will turn definitely toward the American system of a presi-
dential republic, will muddle along with its present plan of parliamentarism in good times and
presidential dictatorship in bad ones, or will cast its vote for a constitutional monarchy . . . In any
case, Germany will remain a constitutional democratic state with strong socializing tendencies
whose backbone will continue to be its professional civil service’ (at 203). The promulgation of the
Emergency Decree of 28 February 1933 (the Reichstag fire decree) had by then become the route
through which Hitler was able to consolidate his power: see Fraenkel, above n 122, esp 3–8.
¹²⁹ Ramraj, above n 124, 4.
practically no interest in the concept of sovereignty’. This type of jurisprudence

can only recognize the normal workings of the law: ‘everything else is a “dis-
turbance” ’. In such an exceptional situation, public lawyers cannot work solely
with the legal–illegal distinction. In this situation, Schmitt contends, ‘the state
remains, whereas law recedes’. The point he is making is not that the state can-
not remain faithful to the ‘demands of legality’. Schmitt recognizes that because
the exception ‘is different from anarchy and chaos, order in the juristic sense still
prevails even if it is not of the ordinary kind’.¹³⁰
What Schmitt here is expressing is no more than that claimed by Jefferson. It
is no more than Learned Hand was maintaining when he asked whether ‘we do
not rest our hopes too much upon constitutions, upon laws and upon courts’;
these are, Hand argued, ‘false hopes’ since liberty lies in ‘the hearts of men and
women’.¹³¹ And it is precisely what Tushnet is groping for when he argues that,
with respect to the adoption of emergency measures, the ‘legal black holes may
be law-free zones, but they are not rule-of-law free zones, because they are created
and sustained in part by a moralised politics’.¹³² When Schmitt argues that in the
state of exception the law recedes but the state remains, he is claiming that there
are moments when the workings of public law (droit politique) require that the
rules of positive law be set aside, suspended, or modified. Positive law recedes, but
droit politique remains.
This aspect of public law jurisprudence seems today to have become lost from
view. Agamben makes an important point when he claims that ‘there is still no
theory of the state of exception in public law, and jurists and theorists of public
law seem to regard the problem more as a quaestio facti than as a genuine juridical
problem’.¹³³ But is this exceptional state to be treated, as Agamben suggests, as
existing in a ‘no-man’s land between public law and political fact, and between
juridical order and life’?¹³⁴ He recognizes that a division exists between jurists
who consider this state to be ‘within the sphere of the juridical order and those
who consider it something external, that is, an essentially political, or in any case
extrajuridical, phenomenon’.¹³⁵ Agamben concludes that ‘the state of exception
is neither external nor internal to the juridical order, and the problem of defin-
ing it concerns precisely a threshold, or a zone of indifference, where inside and
outside do not exclude each other but rather blur with each other’.¹³⁶ But is this
¹³⁰ Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922] George
Schwab (trans) (Chicago: University of Chicago Press, 2005), 12.
¹³¹ Learned Hand, The Spirit of Liberty (New York: Knopf, 2nd edn, 1953), 189–190.
¹³² Mark Tushnet, ‘The political constitution of emergency powers: some conceptual issues’ in
Ramraj (ed), above n 124, 145–155, 155.
¹³³ Giorgio Agamben, State of Exception Kevin Attell (trans) (Chicago: University of Chicago
Press, 2005), 1.
¹³⁴ Ibid.
¹³⁵ Ibid, 22–23. Agamben considers Hauriou and Mortati as being among those treating the
exception as part of juridical order, with Carré de Malberg in the latter camp.
¹³⁶ Ibid, 23. Cf Hans Lindahl, ‘A-legality: Postnationalism and the Question of Legal
Boundaries’ (2010) 73 MLR 30–56.
not more clearly and precisely expressed as the distinction between positive law
and droit politique, between the formal and material constitution, between the
written constitution of government and the constitution of the state? Far from
occupying a ‘zone of indifference’, the question of emergency lies squarely within
the field of public law properly so-called.
This argument may resolve the first question (on the relation between posi-
tive law and droit politique), but the second, the tendency of the executive in
times of stress to assume the general powers of government, remains. It is this
second question that more directly concerns the modern transformation of the
prerogatives of government. How, it might be asked, does droit politique manifest
itself? Schmitt had a deceptively simple answer: ‘Sovereign is he who decides on
the exception’.¹³⁷ In the Weimar Republic that power was vested in the presi-
dent under Article 48 of the Constitution, a common arrangement under mod-
ern constitutions.¹³⁸ But the existence of this formal power does not conclude
the matter. Although, as Hamilton noted, ‘the circumstances that endanger the
safety of nations are infinite, and for this reason no constitutional shackles can
wisely be imposed on the power to which the care of it is committed’,¹³⁹ the
executive must still keep the other institutions of government—and the nation
itself—informed.¹⁴⁰ The executive asserts itself as the driving force of modern
government, and the distinction between legislative, executive, and judicial pow-
ers may become blurred. But this does not circumvent the dynamic working of
droit politique within a public sphere of both absolute and conditioned power.¹⁴¹
VI. Prerogative Sublated
The general implications of this modern sociological approach to public law in

circumstances of modern governmental arrangements are illuminated by exam-
ining the work of its most systematic jurist. Léon Duguit, Professor of Public Law
at the University of Bordeaux from 1892 to 1928, wrote during a period in which
the emergence of the ‘social question’ had generated a crisis of the French state.¹⁴²
¹³⁷ Schmitt, above n 130, 1.

¹³⁸ See, eg, the Constitution of the Fifth French Republic 1958, Art 16: ‘When the institutions
of the Republic, the independence of the nation, the integrity of its territory or the fulfi lment of its
international commitments come under serious and immediate threat and the proper functioning
of the constitutional public authorities is impaired, the President of the Republic shall, after offi-
cial consultation of the Prime Minister, the Presidents of the two Houses, and the Constitutional
Council, take the measures required by the circumstances’.
¹³⁹ The Federalist Papers, above n 2, No 23 (Hamilton) (184–185).
¹⁴⁰ Art 16 of the French Constitution thus states that, in addition to consulting the prime
minister, the presidents of the two Houses, and the Constitutional Council, the nation shall be
informed, Parliament shall convene as of right, and the National Assembly shall not be dissolved.
¹⁴¹ See above ch 8, 228–237.
¹⁴² See HS Jones, The French State in Question: Public Law and Political Argument in the Third
Republic (Cambridge: Cambridge University Press, 1993), 78–84.
This crisis had provoked ‘the emergence of new conceptual problematics which,
enriched by insights borrowed from sociology, political economy, social psychol-
ogy and jurisprudence, focused on the relation between the social fabric and
political authority’.¹⁴³
Placing himself in the juristic vanguard, Duguit responded by undertaking a
radical reconstruction of the foundations of public law. Rejecting all a priori con-
cepts, whether theological or metaphysical, he sought to build a science of public
law on purely empirical foundations.
In a remarkable article on ‘law and the state’ in 1917, Duguit presented a
comprehensive critical assessment of the development of public law in the mod-
ern period.¹⁴⁴ His thesis was radical: revealing his indebtedness to Comte, he
argued that all prior theories of political right are deficient in that they rest on
metaphysical foundations.¹⁴⁵ Starting with the French Revolution (driven by
Rousseau’s philosophy), Duguit explained how the most influential modern
theories—in particular, those deriving from Kant and Hegel and their juristic
offspring (such as Gerber, Laband, and Jellinek)—are thoroughly metaphysical.
Although their precise formulas vary, all are held to be founded on the concept
of the state as an entity possessed of a personality distinct from that of indi-
viduals who form the social group, and all conceive that person as possessing a
will superior to other wills (ie, a sovereign will). Most of this 185-page article is
devoted to producing a precise account of how all earlier theories rest on meta-
physical foundations. Having thus demonstrated the truth of his basic thesis,
the ground is cleared for setting in place his ‘realistic theory’, one that discards
all metaphysical affirmations and rejects all doctrines that postulate the juristic
personality of the state.
Duguit’s realist theory is founded on certain assumptions. The most basic is
that, lacking a personality, the state possesses no will: ‘there are only individual
wills of those governing’ and, although we might speak of ‘the national spirit, of
the personality of the nation and of the State’, these are ‘the purest metaphors’
and ‘are not expressions of reality scientifically established by observation’.¹⁴⁶
Another, which follows from the first, is that political power is to be understood
simply as a fact. Power is vested in those who govern and since this power can
never in its origins be legitimate, it cannot yield a right to govern. Duguit never-
theless acknowledges that although those who exercise this power do not possess
any right to govern, they are able to govern legitimately. Rulers do so by governing
¹⁴³ Cécile Laborde, ‘Pluralism, Syndicalism and Corporatism: Léon Duguit and the Crisis of
the State (1900–1925)’ (1996) 22 History of European Ideas 227–244, 227.
¹⁴⁴ Léon Duguit, ‘The Law and the State’ (1917) 31 Harvard Law Review 1–185.
¹⁴⁵ See Auguste Comte, Cours de philosophie positive (Paris: Ballière, 1864). Comte had argued
that human thought passes through three stages: the theological, which was associated with
militarism; the metaphysical, associated with juristic thought; and the positive, associated with
industrialism.
¹⁴⁶ Duguit, above n 144, 162.
in conformity to what he calls ‘the jural principle’ (la règle de droit).¹⁴⁷ Obedience
is due not because the ruler possesses authority: rather, it is due to ‘every act of the
ruler which conforms to law’. A decision of those who govern ‘is not binding in
and of itself, but only by virtue of its conformity to the jural principle’.¹⁴⁸
What, then, is the jural principle? The short answer is that it amounts to an
explication of the sociology of Comte and Durkheim.¹⁴⁹ The jural principle is
the principle of social solidarity. In Duguit’s formulation this means: ‘Do noth-
ing which can possibly infringe upon social interdependence . . . [and] do all that
is within your power, within your given situation and within your aptitudes, to
insure and increase social interdependence’.¹⁵⁰ For Duguit, this is an objective
law, based exclusively on the fact of social interdependence, a fact established
through scientific observation. This objective law, which applies both to gover-
nors and governed, confers no rights. It establishes a regime of duties. There exists
no right to command, and individuals possess no rights of liberty or property. All
are subject to the jural principle founded on social interdependence.
Duguit’s thesis aims at nothing less than the overthrow of the entire mod-
ern science of droit politique, based on a structure of subjective right, and its
replacement with a new science of public law based on objective law.¹⁵¹ The
implications for public law are more fully revealed in his book of 1913, Les trans-
formations du droit public.¹⁵² In this work, Duguit explains that the modern
inheritance of public law is in ‘a condition of dislocation’ and in need of a new
system to replace it.¹⁵³
Duguit first portrays the inheritance. The French system rests on two key prin-
ciples: state sovereignty, based on the legal personality of ‘the nation’, and the nat-
ural, imprescriptible rights of the individual. In this system, because the collective
person is superior to the individual, the will of the state is superior to individual
will, and this collective will is expressed by the government established to repre-
sent the nation. Members of the nation are both citizens and subjects: as citizens
they form part of the collectivity that exercises sovereign powers, and as subjects
are subordinated to a government exercising those powers. This is a subjective
system, based on the creation of two subjects of law: the juristic person formulat-
ing commands, and the subjects who obey. The subjective right of government
to command is thus opposed to the subjective right of the individual to liberty.
Further, these individual subjective rights are claimed to be anterior to—and also
¹⁴⁷ Ibid, 163. ¹⁴⁸ Ibid, 164.

¹⁴⁹ See Comte, above n 145; Emile Durkheim, The Division of Labour in Society [1893] WD
Halls (trans) (Basingstoke: Macmillan, 1984). It might be noted that Durkheim was a colleague of
Duguit’s at the University of Bordeaux between 1887 and 1902.
¹⁵⁰ Duguit, above n 144, 178.
¹⁵¹ See Léon Duguit, L’État, le droit objectif et la loi positive (Paris: Fontemoing, 1901).
¹⁵² Léon Duguit, Les transformations du droit public (Paris: Armand Colin, 1913); Eng trans as
Law in the Modern State Frida and Harold Laski (trans) (London: Allen & Unwin, 1921): subse-
quent page refs to the English edition.
¹⁵³ Ibid, xxxv.
superior to—that of the state, not least because the state was created to assure the
protection of individual rights. The state must therefore organize itself in such a
way as to secure the maximum protection of individual rights; the state ‘submits
itself to an objective law based on the subjective right of the individual’.¹⁵⁴
Duguit’s argument is that the revolutionary settlement based on the sover-
eignty of the state and the natural rights of the individual is now dead. Not only
is the national will pure fiction but, since man is by nature a social being, so too
is the idea of natural rights that vest in the individual. These cannot provide the
basis for a juristic system that claims to be scientific. All will is individual will
and the will of any agency of government is derived not from the rights it pos-
sesses but from the duties it performs. The measure of any difference in wills
must be determined by the ends pursued. Governmental will thus derives from
its function, which is to promote social solidarity. In this way, the idea of public
service replaces the concept of sovereignty as the foundation of modern public
law. Government does not exercise a sovereign power to issue commands: govern-
ments have no prerogatives. Government is simply ‘a group of individuals who
must use the force they possess to supply the public need’.¹⁵⁵
Duguit’s thesis has particular effect in a world of active government. Modern
government increasingly intervenes in the provision of services, such as educa-
tion, social security, transport, and utility supply. But although this system ‘has
to be regulated and ordered by a system of public law’, it can no longer be based
on ideas of sovereignty, not least because it is ‘applied to acts where no trace of
power to command is to be found’.¹⁵⁶ The ‘real basis’ of governmental power is
‘social interdependence’; there exists ‘an intimate relation between the posses-
sion of power and the obligation to perform certain services’.¹⁵⁷ Public law has
been transformed: from a system of subjective rights, it must now be recognized
to form a regime of objective law. ‘The basis of public law’, Duguit contends,
‘is . . . no longer command but organization’.¹⁵⁸
With this transformation, all claims to governmental prerogative have been
sublated. Governments ‘are no longer the masters of men imposing their sovereign
will on their subjects’ or ‘organs of a corporate person issuing its commands’; gov-
ernment officers ‘are simply managers of the nation’s business’.¹⁵⁹ Duguit argues
that ‘the growth and extension of state activity does not necessarily increase the
¹⁵⁴ Ibid, xxxix. ¹⁵⁵ Ibid, xliv.

¹⁵⁶ Ibid, 31. Duguit argues that public lawyers such as Hauriou and Berthélemy accept the basic
point but, rather than working through the consequences, hold on to sovereignty as a fig leaf. He
quotes, for example, Hauriou, Droit Administratif: ‘Governmental acts do not imply the existence
of a juristic person in whose name they are performed. . . . Persons only have rights; the use of power
is in no sense the exercise of rights. A civil servant who gives an order does not exercise a sovereign
right. What he does is fulfi l his functions, and then . . . the ensemble of such functions may be said
to constitute sovereign power’. Duguit then comments: ‘But it is important to remember that both
these thinkers insist that sovereign power is a function and not a subjective right to command’ (at
38, 39).
¹⁵⁷ Ibid, 43, 44. ¹⁵⁸ Ibid, 49. ¹⁵⁹ Ibid, 51.
state’s power’ because, as that activity increases, so also do their duties expand.¹⁶⁰
Public law is founded on public service, and public service is the institution of ‘a
rigorously objective order controlled by principles equally imposed on the gov-
ernment and its subjects’.¹⁶¹ The system of public law is ‘constructed to ensure
that the citizen receives the service he is entitled to expect’.¹⁶² Both the subjec-
tive rights of government—its prerogative powers—and the subjective rights of
the individual—its intrinsic natural rights—are eclipsed in legal thought, to be
replaced with ‘the formation of an objective governmental duty in regard to pub-
lic services, the operation of which is legally guaranteed’.¹⁶³
In 1976, Foucault commented that ‘[s]overeign, law, and prohibition formed
a system of representation of power which was extended . . . by the theories of
right’ and claimed that in the modern era ‘political theory has never ceased to
be obsessed with the person of the sovereign’. What is needed, he contended, is
a political theory that does not revolve around the issue of sovereignty and pre-
rogative: ‘We need to cut off the king’s head. In political theory that has still to be
done’.¹⁶⁴ Sixty years earlier, this is precisely what his compatriot had achieved in
public law. Duguit rejected the entire imperial system of sovereign right bolstered
by prerogative powers, ‘the irresponsibility of statute’, and the myth of democ-
racy as the principle of legitimation,¹⁶⁵ and had replaced it with an objective jural
principle—the promotion of social solidarity—through which social life could
be comprehensively regulated.
¹⁶⁰ Ibid. ¹⁶¹ Ibid, 54. ¹⁶² Ibid, 55. ¹⁶³ Ibid, 65.
¹⁶⁴ Michel Foucault, ‘Truth and Power’ in his Power: Essential Works of Foucault, 1954–1984
(London: Penguin, 2001), vol 3, 111–133, 122.
¹⁶⁵ Duguit, above n 152, 83. See also at 34: ‘we cannot to-day be satisfied with the over simple
notion of a sovereignty which expresses itself in an electoral majority. That is no longer the funda-
mental principle of public law. . . . [M]ajority rule is no longer the fundamental principle of modern
democracy; . . . the idea of national sovereignty, so intimately connected with it, is no longer the
basis of the theory of the state’.
14
Potentia
The modern European state incorporates an irreconcilable tension between

societas, authority generated by allegiance to an order of rules, and universitas,
authority generated by allegiance to a set of common purposes. This is the source
of so much ambiguity about the legitimacy and legality of contemporary govern-
mental action. Since the tension can never be overcome but only negotiated, it also
explains why public law remains an essentially prudential discourse.¹ But there is
an additional layer of complexity to consider. If public law is conceived as a type of
political reason that functions to maintain the power of the public sphere,² then it
becomes necessary also to acknowledge the existence of two different concepts of
power: potestas, the rightful power of rule, and potentia, a source of power drawn
from government’s actual ability to control the disposition of things.³ When
examining constitutional arrangements in Chapter 10, we were concerned mainly
with potestas. But once it is recognized that governmental authority is not simply
delegated and that modern government also exists to control the governed, the
workings of potentia is drawn more centrally into the frame.
It has been shown in Chapter 13 how the intrinsic powers of government—the
prerogative powers—were first subjected to controls, then (as a consequence of
the growth of administrative government) transformed, and finally (as govern-
ment assumes the ubiquitous role of regulating all aspects of social life) sublated.
These changes in the nature, scope, and mode of exercise of prerogative powers
have shaped modern understandings of government. These changes are directly
linked to the rise of potentia, whose origins lie in the residue of lordship contained
within kingship and whose modern workings have exploited the underlying
idea of kingship as pastorship. In this respect, potentia finds its place in govern-
ment mainly via its shadowy side, as part of the secret knowledge of government
(arcana imperii).
Although the origins of potentia can be traced to the exercise of the king’s pre-
rogatives, its significance in the modern era has been altered out of all recognition.
¹ See above ch 6, esp 158–164.

² See above ch 2, 86–88.
³ See above ch 3, 102–106. The linkage is complex because in the image of the state as societas,
potestas is the only relevant concept of power. When universitas is drawn into the frame, potentia
becomes the relevant mode of power, and possibly the dominant one, though without potestas ceas-
ing to be important.
408 Potentia
This comes about because of a third revolution that has shaped public law. This
revolution follows the technological (especially military) revolution that formed
the state and the bourgeois revolution that shaped constitutional understand-
ing. This third revolution, the disciplinary revolution, follows in the wake of the
Protestant Reformation. Its main effect has been to place the objective of estab-
lishing a well-ordered commonwealth at the heart of public law.
This third revolution complements the other two, giving public law its rich and
complex character. But in the process of promoting the well-ordered common-
wealth as the main objective in public law, it also undermines some of the con-
stitutional aspirations of the bourgeois revolution. The disciplinary revolution
supplements the bourgeois revolutionary concern for the structure of government
with a concern over its infrastructure. The aim of establishing a well-ordered com-
monwealth results in government acquiring an extensive role in the regulation of
social life. This leads to a shift in orientation from input legitimacy (focusing on
right-ordering) towards output legitimacy (measured by effectiveness in service
provision)—that is, a shift from potestas towards potentia.
In this chapter, the origins and nature of the disciplinary revolution are exam-
ined and its impact on the workings of modern government assessed. The inquiry
brings a shift in focus from the rights of citizens to the functions of government
and it requires us to consider more carefully the nature of the executive function
of government. A central aspect of this executive role is to be found in the concept
of police, the regulatory power vested in government that justifies the restriction
of the exercise of individual rights for the purpose of promoting the general wel-
fare of the people. The police power highlights the importance of the adminis-
trative function, and the manner of its exercise reveals the workings of potentia in
modern government.
I. The Disciplinary Revolution
In De Cive, Hobbes asked whether humans ‘are born fit [apti nati] for society’.⁴
This was novel: earlier writers on public affairs had assumed that man is a social
animal, and on this foundation had erected ‘a structure of civil doctrine, as if
no more were necessary for the preservation of peace and the governance of the
whole human race than for men to give their consent to certain agreements and
conditions which, without further thought, these writers call laws’.⁵ Hobbes
claims that this axiom is false. The error ‘proceeds from a superficial view of
human nature’. Society ‘exists for the sake either of advantage or of glory, ie, it is a
⁴ Thomas Hobbes, On the Citizen [1647] Richard Tuck and Michael Silverthorne (eds)
(Cambridge: Cambridge University Press, 1998), 21.
⁵ Ibid, 22.
product of the love of self, not of love of friends’.⁶ Man, he concludes, ‘is made fit
for Society not by nature, but by training’.⁷
Recognizing the vital importance of this argument, Tuck suggests that Hobbes’
political theory is rooted in a belief that ‘men find peace and security by denying
themselves individual judgment: by subordinating their own wills, desires and
beliefs to those of their sovereign, not because their sovereign knows better, but
because the disciplining of an individual psychology is necessary for one’s well-
being’.⁸ For Hobbes, the state becomes the instrument of self-discipline.
This idea of the state as a disciplinary institution became a central motif of
seventeenth-century political thought. During the seventeenth century, attempts
were made by rulers, especially in France and Central Europe, ‘to shape through
ordinances the economic, educational, spiritual and material well-being of their
subjects, in the interests of power, but also of improvement’.⁹ The object of those
initiatives was not simply to impose discipline on society; it was also to promote
self-discipline. This innovation involved an extension of the idea of nobility—the
disciplined life—to society in general.¹⁰ Society had to be subjected to the discip-
line of civility.
The most radical aspect of this revolution, at least from the perspective of pub-
lic law, was that this discipline was not only imposed from above by the cen-
tral authorities; it was also promoted from below, through enforced compliance
to social norms. The latter aspect of this disciplinary revolution is tied to the
emergence of neo-Stoicist and Calvinist ideas which were spreading through
local communities. These local communities played a key role in the diff usion of
disciplinary practices. Whereas the authority of medieval government had been
anchored by a transcendent figure with the power to issue commands (the sov-
ereign), these early-modern disciplining processes emphasized the necessity of
instilling self-government. Flowing from the Protestant Reformation, the impact
of social discipline on governmental practices was most pronounced in Calvinist
regimes.
Gorski draws a comparison between the impact of the disciplinary revolution
on the modern state and that of the industrial revolution on society: ‘Like the
industrial revolution, the disciplinary revolution transformed the material and
technological bases of production; it created new mechanisms for the produc-
tion of social and political order’. The disciplinary revolution, like that of the
⁶ Ibid, 24.
⁷ Ibid, 25.
⁸ Richard Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge University
Press, 1993), 346.
⁹ Charles Taylor, A Secular Age (Cambridge, MA: Belknap Press, 2007), 111.
¹⁰ José Ortega y Gasset, The Revolt of the Masses (New York: WW Norton, 1932), 63: ‘This is life
lived as a discipline—the noble life. Nobility is defined by the demands it makes on us—by obliga-
tions, not by rights. Noblesse oblige. “To live as one likes is plebeian; the noble man aspires to order
and law” (Goethe). The privileges of nobility are not in their origin concessions or favours; on the
contrary, they are conquests’.
410 Potentia
industrial revolution, ‘was driven by a key technology: the technology of obser-
vation—self-observation, mutual observation, hierarchical observation’. Gorski
even claims that: ‘What steam did for the modern economy, discipline did for
the modern polity: by creating more obedience and industrious subjects with less
coercion and violence, discipline dramatically increases not only the regulatory
power of the state, but its extractive and coercive capacities as well’.¹¹
Once this type of claim is acknowledged, some adjustment to our understand-
ing of the processes of state-formation is required.¹² When we adjust perspec-
tive from top-down to bottom-up processes, the way in which state-formation is
linked to the objective of creating a more disciplined society comes more prom-
inently into view. By focusing on the degree to which the struggle against abso-
lutism was tied to certain questions of religion, the pastoral role of the state is
seen in a different light, not least because many of the key agents in this pro-
cess are local rather than central, and they—the Protestant clerics and reforming
magistrates—were often religious as well as political leaders. By linking state for-
mation to the reform of religion and by tying reform of religion to the growth of
disciplinary practices, a contrasting insight into the character of the modern state
is revealed.
This perspective helps us to understand, for example, why ‘two of the least
centralized and least monarchical states in the early-modern world—the
Netherlands and England—were also among the most orderly and powerful’.¹³
It also explains how Brandenburg–Prussia swiftly changed from being one of the
‘most fragmented and backward monarchies of Europe’ to become ‘one of the
most unified and advanced of the great powers’.¹⁴ Central to these accounts is
the fact that these regimes, unlike many European states, experienced Calvinist
disciplinary revolutions. And these accounts display more prominently the role of
pastorship in state formation.
The context for this disciplinary revolution is neatly set by Oestreich in his
essay on the structure of the absolutist state. Oestreich notes that the so-called
absolutist state flowing from Bodin’s claim that the prince was legibus solutus
‘cannot be held to have exercised a total supervision of public and personal life’.¹⁵
The claim that all political authority emanated from the centre was purely the-
oretical: ‘In reality monarchic authority had only a partial influence on what
came to be known as the provincial level and hardly any, or none at all, in local
government’.¹⁶ For Oestreich, centralization and institutionalization of polit-
ical power could only partly account for the changes that are often associated
¹¹ Philip S Gorski, The Disciplinary Revolution: Calvinism and the Rise of the State in Early
Modern Europe (Chicago: University of Chicago Press, 2003), xvi.
¹² Cf above ch 9, 239–243.
¹³ Gorski, above n 11, xvii, ch 2.
¹⁴ Gorski, ibid, xvii, ch 3.
¹⁵ Gerhard Oestreich, ‘The structure of the absolute state’ in his Neostoicism and the early modern
state David McLintock (trans) (Cambridge: Cambridge University Press, 1982), 258–273, 259.
¹⁶ Ibid, 263.
with absolutism. The prime cause was broader: it was ‘something which radically
transformed the state, society and the nation’.¹⁷ This he calls ‘social discipline’,
the emergence of a set of processes that resulted in the disciplining of society.
Oestreich argues that the most profound changes that took place in the early-
modern period are ‘the spiritual, moral, and psychological changes which social
discipline produced in the individual, whether he was engaged in politics, army
life, or trade’.¹⁸ Such changes were more basic than any alteration in governmen-
tal form. The most important achievement that absolutism brought about was the
institutionalization of social discipline. This change was largely a consequence of
the religious and civil wars of the late-sixteenth and early-seventeenth centuries.
The cruelty and strife of these religious wars could be ended only by a strategy
that entailed the de-theologization of public life, the establishment of a strong
state that could keep religious factions in check, and the strengthening of mili-
tary and administrative power through disciplinary techniques.
Such a strategy coincided with a resurgence of interest in the Roman values of
Stoicism: auctoritas, temperantia, constantia, and disciplina. This renewed interest
in Stoicism was undoubtedly linked to the objective of bolstering governmen-
tal authority through command and obedience. But it also extended beyond the
political to embrace the social. All social interaction was to be governed by rules:
rules of ceremony, rules of etiquette, and rules of conduct. Although the result
was the formation of a strict regime, this ‘was not seen as slavery’; rather, it was
conceived as a type of ‘moral stiffening which prevented one from falling’.¹⁹ As
Oestreich puts it: ‘Contemplating the seventeenth-century picture of man—in
religious terms a prey to sin, in philosophical terms a victim of his passions—one
begins to appreciate the extent of the preoccupation with discipline’.²⁰
The early-modern period may thus be characterized as the institutionalization
of social discipline. It led to the enactment of countless regulations, codes, and
prescriptions governing the conduct not only of public but also of private life.
These regulations were issued not solely by the central authorities; they were also
promulgated by the Church and the townships and boroughs. Their objective
was not only to provide a framework of collective existence, but to regulate the
myriad practices of ordinary daily life.²¹ In early-modernity we see not only the
formation of the state, but also the subjection of mankind to extensive discipli-
nary regimes. The period that witnessed the birth of the modern state was also
the period that saw man’s subjection to the discipline of self-control.
¹⁷ Ibid, 265.
¹⁸ Ibid.
¹⁹ Ibid, 269. Cf Rousseau, above ch 4, 115.
²⁰ Oestreich, above n 15.
²¹ See Norbert Elias, The Civilizing Process: The History of Manners and State Formation and
Civilization (Oxford: Blackwell, 1994), esp 457–460; Hajo Höpfl, The Christian Polity of John
Calvin (Cambridge: Cambridge University Press, 1982); Robert Kingdon, ‘Was the Protestant
Reformation a Revolution? The Case of Geneva’ in Derek Baker (ed), Church, Society, and Politics
412 Potentia
One of the major works to highlight the central importance of discipline in
public life was Justus Lipsius’ Politicorum sive civilis doctrinae libri sex of 1589.²²
Lipsius, a professor at Leiden University, promoted a Stoic political ethic based
on prudence and virtue.²³ He argued that the overriding objective of rule was to
maintain civil peace. All other principles must be sacrificed in furtherance of this
aim. Consequently, as Tuck puts it, his policies were ‘a mixture of ruthlessness
and gentleness: they were ruthless in so far as they disregarded conventional prin-
ciples of justice, and could also enforce religious observance upon an unwilling
population; but they should be gentle if it became obvious that peace could only
be secured by the abandonment of some of the ruler’s own most cherished object-
ives, including at least in principle religious uniformity’.²⁴ In furtherance of this
goal, Lipsius advocated strong discipline in both official and private life.²⁵ His
proposals for military reforms, for example, laid the basis of a disciplined military
system through which the army became a permanent institution of the state. But
he also placed great importance on the need to supervise moral conduct, and to
maintain rules of censorship and rules against such conduct as adultery, drunk-
enness, fighting, and swearing. Discipline became the overriding objective. Not
only does it enhance efficiency in government; it also promotes a more orderly
private existence, one that government can more effectively control.²⁶
The Politics of Lipsius achieved an enduring popularity and exercised a power-
ful influence on seventeenth-century political thought.²⁷ Oestreich thus argues
that the leading jurists who reconstructed natural law on modern foundations—
especially Grotius, Hobbes, and Pufendorf—were all suffused with Lipsius’ ideas,
and that the ‘ideological foundations of [modern] natural law . . . are to be sought
not so much in scholasticism as in the direct revival of the Stoa’.²⁸ ‘The teaching
of political Neostoicism and Grotius’ ideas on law and state’, he concludes, ‘deter-
mine the changes we have to integrate into the new social ideology of asceticism
and discipline’.²⁹
Oestreich points the way by explaining that although Weber had identified the
connections between religion and economic life, he had not drawn parallels with
²² Justus Lipsius, Sixe Bookes of Politickes or Civil Doctrine William Jones (trans) (London:
William Ponsonby, 1594).
²³ Lipsius, ibid, 39: ‘For without Prudence, it [government] is not onely weake and feeble, but I
may well say none at all’.
²⁴ Tuck, above n 8, 56–57.
²⁵ See Halvard Leira, ‘Justus Lipsius, political humanism and the disciplining of 17th century
statecraft’ (2008) 34 Review of International Studies 669–692.
²⁶ See Oestreich, ‘The main political work of Lipsius’ in Oestreich, above n 15, 39.
²⁷ Oestreich, above n 15, 57–58: ‘Just before it was published, Bodin’s work appeared, in 1576;
shortly after, in 1603, that of Althusius. Yet these two achieved only a fraction of the influence des-
tined for Lipsius’ work. Of the Latin original there were fifteen editions in the first ten years, from
1589 to 1599. In the same period it was rendered into Dutch, French, English, Polish and German.
Spanish and Italian translations followed in 1604, a Hungarian in 1641. Up to the start of the
Th irty Years War a new edition left the press almost every year’.
²⁸ Oestreich, ibid, 38. Cf above ch 2, 73–83.
²⁹ Oestreich above n 15, 69.
the state.³⁰ It was therefore left to Hintze to highlight affinities between religious
reform, especially Calvinism, and the modern state.³¹ What these processes most
shared in common, argued Hintze, was an increase in both the intensity and the
rationality of religious and political life. For Oestreich, ‘[o]nly by simultaneously
considering political Neostoicism (which was essentially unconfessional) and the
philosophy of natural law can we arrive at an answer to the troublesome ques-
tion of how it was possible for constitutional ideas emanating from the Calvinist
Netherlands to exercise so much influence in Lutheran and Catholic countries’.³²
Though powerful, Oestreich’s argument treats these changes as having been
brought about through a top-down process. Gorski questions this assumption
and then proceeds to radicalize Oestreich’s argument.
Gorski claims that ‘Weber grasped the relationship between religion and dis-
cipline, and Foucault theorized the nexus between discipline and the state, but
neither put together all three links in the chain’.³³ Gorski thus seeks to bring
about a synthesis, showing the way in which the emergence of the modern state
was associated with religious reform, and was achieved by what he calls a discip-
linary revolution. Recognizing that ‘at perhaps no other time in European history
were religion and politics more tightly intertwined than in the two centuries fol-
lowing the Reformation’, he seeks to ‘connect the dynamics of the Reformation
with the dynamics of social and political development’.³⁴
Gorski’s starting point is to draw on the work of scholars who have highlighted
the mutually reinforcing nature of state-building and church-building.³⁵ Church
authorities needed state support in order to ‘impose a uniform set of religious
beliefs and practices on the populace’ and the civil authorities believed that
³⁰ See Max Weber, The Protestant Ethic and the Spirit of Capitalism [1904–1905] Talcott Parsons
(trans) (New York: Schribner, 1958).
³¹ Otto Hintze, ‘Calvinism and Raison d’Etat in Early Seventeenth-Century Brandenburg’
[1931] in Felix Gilbert (ed), The Historical Essays of Otto Hintze (New York: Oxford University
Press, 1975), 88–154, esp 91–92: ‘the thesis of an affinity between Calvinism and modern raison
d’ état . . . has recently received a broader and profounder dimension through recent sociological
research. In this regard I am thinking particularly of the assessment, which emanated some twenty
years ago from the Heidelberg school of sociologists, of Calvinism as midwife in the establishment
of the modern political and social order. Georg Jellinek chose to regard the Puritan Independents’
demand for a guarantee by the state of freedom in religion and conscience as basic for the develop-
ment of the so-called Rights of Man, the legal foundations of individual rights in modern constitu-
tions. Max Weber has shown how, particularly in England and Scotland, capitalism, the modern
form of economic enterprise, received a strong boost from the ethics and economic convictions of
Puritan Calvinism. Troeltsch has generalized this thesis and evaluated the general significance of
the Protestant ethic for the modern notion of profession and its application. May we not, then,
establish something similar regarding the influence of Calvinism and the stricter, more ascetic
forms of Protestantism in general on modern raison d’ état of the seventeenth century?’
³² Oestreich, above n 15, 69.
³³ Gorski, above n 11, 3.
³⁴ Ibid, 3, 17.
³⁵ See, esp Heinz Schilling, Konfessionskonflikt und Staatsbildung (Gütersloh: Gütersloher
Verlagsanstalt, 1981); Heinz Schilling (ed), Kirchenzucht und Sozialdisziplinierung im früh-
neuzeitlichen Europa (Berlin: Duncker & Humblot, 1994).
414 Potentia
‘religious uniformity provided the best foundation for political stability’.³⁶ In
general terms, the establishment of territorial churches strengthened the power
of the state. In Lutheran lands, the Church was directly subject to the ruler’s
authority but even in Calvinist regimes, where the Church had greater independ-
ence, the ruler’s nominees were commonly placed in the consistories, the govern-
ing body of each congregation. The churches were also able to strengthen state
power by indirect means, mainly by enforcing new practices of moral and social
regulation. Gorski here draws on Schilling’s claim that the Protestant ministers
became ‘the most important mediators of a new system of moral-ethical and
political-legal norms’. As Schilling notes: ‘Through household visitations, church
discipline and ecclesiastical courts, they [sc. Protestant ministers] monitored and
disciplined everyday life-conduct, penetrating into the last house in the most iso-
lated little village’.³⁷
These Reformation changes are seen in the northern European towns from the
sixteenth century onwards, especially as arrangements for poor relief are reformed
through the introduction of more efficient and discriminatory (between deserv-
ing and undeserving) methods of social support. Alongside the promulgation of
new poor law regulations, we see the introduction of educational reforms, the
rationalization of rules governing sexual conduct and marriage, and eventually
‘the state monopolized control over the new infrastructure of power—prisons
and workhouses, the schools and universities, the law and the courts’.³⁸ All reli-
gions promoted greater disciplinary controls, but Calvinism went furthest, espe-
cially in advocating an ethic of self-discipline. The Calvinist Dutch state provides
Gorski with his model.
Gorski poses the issue in these terms: although the state was neither highly
centralized nor bureaucratized, the Dutch Republic seems to have been ‘one of
the safest, most stable, and best governed nations in Europe’.³⁹ It contained a rel-
atively small territory and population, but was able to maintain a large army and
navy, to run an empire, and to compete successfully with the major powers. One
primary factor was the strength of its economy. But given the state’s ability to
extract resources through relatively high levels of taxation, Gorski suggests that
we must also broaden our focus beyond the political to the social, and beyond the
central to the local. Here, the role that religious discipline performs in maintain-
ing social order assumes a special significance.
³⁶ Gorski, above n 11, 17–18.

³⁷ Heinz Schilling, Aufbruch und Krise: Deutschland, 1517–1648 (Berlin: Siedler, 1988), 369;
cited by Gorski, above n 11, 18 (Gorski’s translation).
³⁸ Gorski, ibid, 19. For English reforms in these fields, see: Lawrence Stone, ‘The Educational
Revolution in England, 1560–1640’ (1964) 67 Past and Present 41–81; Michael Ignatieff, A Just
Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (Harmondsworth:
Penguin, 1989); Michael J Braddick, State Formation in Early Modern England, c.1550–1700
(Cambridge: Cambridge University Press, 2001), chs 3 (poor law) and 4 (law and courts).
³⁹ Gorski, above n 11, 40.
The conclusions Gorski reaches are that the Dutch state was strong and that
this strength had more to do with ‘state infrastructure’ than with ‘state structure’.
The state infrastructure to which he refers was largely a result of the Calvinist dis-
ciplinary revolution.⁴⁰ Central government in the Netherlands was ‘quite weak’,
but local institutions were ‘extremely strong’.⁴¹ Much of this is attributable to the
work undertaken by Dutch religious and political elites ‘to encourage economic
self-sufficiency, combat moral degeneracy, and maintain social stability’.⁴² The
general message to be drawn from the study is that when examining the processes
of state formation, scholars should pay less attention to the distinction between
state and society and more ‘to the way public and private institutions co-operate
in the project of popular governance’. State power (potentia), Gorski suggests, ‘is
a function not only of coercive and extractive capacity, but also of regulatory and
normalizing capacity as well’.⁴³
The Dutch case is taken by Gorski to exemplify a more general set of claims
about state formation. He argues that this intensification of religious discipline
in early modern Europe considerably enhanced the power of the state in four
related ways:
First, it helped to pacify the popular classes and civilize everyday life, making the task of
governing easier and decreasing the need for coercion. Second, it engendered new forms
of non-state governance, mechanisms of social control and moral regulation that were
consonant with the goals of political elites but not directly and/or formally subject to
their authority (for example, ecclesiastical discipline, church-based social provision).
Third, it mobilized elite energies for projects of social and political reforms by aligning
ideal interests in spiritual salvation with projects of social disciplining and self-mastery.
Fourth, it generated new models of social regulation and political administration, which
could, and did, serve as inspirations or models for secular ones (for example, surveillance
of the poor or bureaucratization of state administration).⁴⁴
Gorski’s study of disciplinary mechanisms also highlights the point that in
addition to performing administrative and policing functions, states undertake
pedagogical, corrective, and ideological tasks. In the early-modern period, states
devoted substantial resources to the establishment of institutions such as schools,
orphanages, prisons, and workhouses, institutions whose primary function was
not coercion but socialization.
⁴⁰ Ibid, 75.
⁴¹ Ibid, 67.
⁴² Ibid, 61.
⁴³ Ibid, 77.
⁴⁴ Ibid, 158–159. Gorski also argues that in cases like the Dutch, where the disciplinary revolu-
tions came from below, the first two factors are more important. But in cases like Brandenburg–
Prussia, in which the revolution was orchestrated from above, the latter two factors tend to be of
first importance. In the Civil War of mid-seventeenth-century England, all four factors were pre-
sent, ‘a finding that may well shed some light in the unlikely rise of that island nation to the status
of global hegemon in the century that followed’ (ibid, 159).
416 Potentia
The message to be drawn is that state power should be seen not only in terms
of command (potestas), but also from the perspective of co-optation and normal-
ization. And normalization, the shaping of obedient and productive subjects,
becomes a precondition for enabling the state to realize its ability actually to con-
trol resources (potentia). State power is not simply a function of state structure; it
is also a function of state infrastructure. Th is complicates the picture, especially
from a legal perspective: in place of a clear, symmetrical, rule-based constitutional
structure, we are obliged to examine a complex arrangement of government in
which local and non-public bodies play important roles and where knowledge
and power flows are no longer linear but recursive. The activity of governing takes
shape not as a tripartite structure of legislature, executive, and judiciary, but as
an elaborate administrative network of persons, institutions, practices, and pro-
cesses involving a mixture of public roles.
The general thesis Gorski presents is that ‘state capacity is a function, not only
of administrative rationalization, but of the strength of the social infrastructure
and the rationality of socio-political ethics’.⁴⁵ This thesis directly engages the
concept of power as potentia, and draws on the work of scholars such as Foucault
and Mann.⁴⁶ Arguing that Weber ignores the relation between discipline and the
state, that Foucault represses the connection between religion and discipline, and
that Oestreich addresses the issue of discipline and state-building but adopts an
overly top-down treatment,⁴⁷ Gorski seeks to fill the gap.
Gorski argues that although Foucault traces the emergence of potentia (ie, what
Foucault calls gouvernmentalité)⁴⁸ to the decline of feudalism and the beginning
of the Reformation, he provides few details, draws an inappropriately sharp dis-
tinction between princely power and pastoral power and makes the untenable
claim that a disciplinary regime only took shape in mid-eighteenth-century
absolutist France.⁴⁹ Gorski claims that ‘most of the disciplinary strategies that
Foucault identifies (mutual surveillance, compartmentalization of space, use of
written codes, and so on) and all of the disciplinary institutions that he discusses
(the prison, the workhouse, the school, the barracks) were more or less fully devel-
oped by the end of the seventeenth century at the very latest’.⁵⁰ That is, ‘the his-
tory of discipline does have a subject and . . . it did involve subjection’.⁵¹ It is to that
history, especially with respect to administrative rationality, that we now turn.
⁴⁵ Gorski, ibid, 37–38.

⁴⁶ See above ch 6, 164–171.
⁴⁷ Gorski, above n 11, 23.
⁴⁸ Michel Foucault, ‘Security, Territory, and Population’ in his Essential Works, Vol.1 Ethics
Robert Hurley (trans) (London: Penguin, 2000), 67–71, 68: ‘the formation of a political “govern-
mentality”: that is, the way in which the behaviour of a set of individuals became involved, more
and more markedly, in the exercise of sovereign power’.
⁴⁹ Gorski, above n 11, 25. The claim is made in Michel Foucault, Discipline and Punish: The
Birth of the Prison Allan Sheridan (trans) (London: Penguin, 1977), esp ch 1.
⁵⁰ Gorski, above n 11, 25.
⁵¹ Ibid, 26.
II. Cameralism 417
II. Cameralism
The principal political manifestation of the Reformation throughout the

German lands was a revolt by the princes against the authority structure of the
Holy Roman Empire. This modernizing movement asserting the prince’s claims
to sovereignty carried dangers of both an external and internal nature. Since the
German principalities varied greatly in size and structure, with many being lit-
tle more than patriarchal estates, the fragmentation of the old imperial system
carried the external threat that these states might be plunged into conditions
of conflict and war. The internal dangers arose mainly as a consequence of the
removal of the authority of the Roman Church throughout Protestant lands. In
this situation, the civil authorities felt obliged—if for no other reason than to
maintain civil peace—to offer moral guidance on all aspects of public and private
life.⁵² These twin movements of Religionsstreit and Staatenbildung set the context
within which the policy of governing known as Cameralism emerged.⁵³
Cameralism was the philosophy of the Cameralists, a group of scholars and
experts in the practices of the Kammer. The term Kammer was first used in a tech-
nical sense to represent the prince’s treasury, but its meaning gradually extended
to include all the departments and offices of government. The principal ques-
tion with which the Cameralists were concerned was: ‘How may a government
be strong enough to resist other states, and to preserve order among its own
people?’⁵⁴ The general answer they supplied was that rulers must ensure they
possessed sufficient revenues to be able to meet all their necessary expenses. But
the particular achievement of the Cameralists was to provide answers to the more
precise question of how it was that states might ensure the necessary supply. In a
pioneering analysis written in the early-twentieth century, Small’s objective had
been to demonstrate that Cameralism should not be viewed primarily as an early
economic doctrine, but was ‘an administrative technology’.⁵⁵ The Cameralists, he
argued, were political scientists, not economists, and Cameralism is to be under-
stood as the first movement to treat government as an issue of resource man-
agement. In Cameralism, we see the origins of the modern attempt to develop a
science of public administration.⁵⁶
⁵² See Marc Raeff, The Well-Ordered Police State: Social and Institutional Change through Law
in the Germanies and Russia, 1600–1800 (New Haven, CT: Yale University Press, 1983), 16–17:
‘Of critical significance was the Church’s withdrawal, voluntary or forced, from such vital realms
of social and cultural life as education and the care of the poor . . . Now all of these functions had to
devolve on temporal authorities’.
⁵³ Thomas Simon, ‘Gute Policey’: Ordnungsleitbilder und Zielvorstellungen politischen Handelns
in der Frühen Neuzeit (Frankfurt am Main: Klostermann, 2004), Parts B and C.
⁵⁴ Albion W Small, ‘Some Contributions to the History of Sociology: Section VIII. Approaches
to Objective Economic and Political Science in Germany: Cameralism’ (1923) 29 American Journal
of Sociology 158–165, 159.
⁵⁵ Albion W Small, The Cameralists: The Pioneers of German Social Policy (Chicago: University
of Chicago Press, 1909), 591.
⁵⁶ Simon, above n 53, Pt D.
418 Potentia
The movement can be dated with some precision: it began with the publication
of Melchior von Osse’s Political Testament of 1555, which was an attempt to delin-
eate the governmental and regulatory arrangements of the main German states
in the mid-sixteenth century.⁵⁷ Cameralism then acquired an additional impetus
after the Peace of Westphalia in 1648, a period that saw the end of the cruelties
of civil war and ‘its replacement by discipline, subordination, and the restoration
of order through command and obedience’.⁵⁸ The movement is generally consid-
ered to have drawn to a close in the late-eighteenth century, largely as a result of
being overtaken by the innovative analysis provided in Adam Smith’s Wealth of
Nations of 1776.⁵⁹ Cameralism operated on the simple premise that the welfare of
the state is the highest law. What remained ambiguous throughout, however, was
how and by whom ‘the welfare of the state’ was to be determined.⁶⁰
Cameralism began by promoting efficient methods of raising princely reve-
nues, whether from the administration of family domains or through Regalia,
those prerogative rights that were reserved for royalty and were to be exercised
for the common good.⁶¹ As the science of Cameralism developed, the textbooks
tended to adopt eight standard categories of Regalien: mining, coinage, customs
and tolls, the grant of fiefs and titles (Lehen), the grant of hunting and fishing
privileges, wood-gathering privileges in royal forests, control of waterways, and
the postal service.⁶² This much is straightforward: it presented itself as a method
for identifying, formalizing, and enhancing the resources that lie within the con-
trol of government.⁶³ But as this science developed, the Cameralists extended
⁵⁷ Mechior von Osse Politisches Testament [1555] in Oswald Artur Hecker (ed), Schriften
Melchiors von Osse (Leipzig: Schriften der Sächsischen Kommission für Geschichte, 1922), 269–
475. The volume received its first printing in 1717, following its discovery by Christian Thomasius.
⁵⁸ Oestreich, above n 15, 267.
⁵⁹ See Keith Tribe, ‘Cameralism and the sciences of the state’ in Mark Goldie and Robert Wokler
(eds), The Cambridge History of Eighteenth-Century Political Thought (Cambridge: Cambridge
University Press, 2006), 525–546, 546: ‘When change did come to the Staatswissenschaften, with
the reception of Smith in the 1790s, and Jean Baptiste Say in the early 1800s, it involved a complete
reconceptualisation of the problematic of state and social order, a reordering that robbed cameral-
ism of its inner logic. The emergence of civil society from its lexical identification with the state
involved a recognition of the autonomous dynamic of subjects within this society, and the conse-
quent restriction of state activity’.
⁶⁰ See Diethelm Klippel, ‘Reasonable Aims of Civil Society: Concerns of the State in German
Political Theory in the Eighteenth and Early Nineteenth Centuries’ in John Brewer and Eckhart
Helmuth (eds), Rethinking Leviathan: The Eighteenth Century State in Britain and Germany
(Oxford: Oxford University Press, 1999), 71–98, 77–87.
⁶¹ Regalien were originally divided into low and high, with the former being those rights the
prince exercised to maintain his own household and the latter being those exercised for the com-
mon good.
⁶² David F Lindenfeld, The Practical Imagination: The German Sciences of State in the Nineteenth
Century (Chicago: University of Chicago Press, 1997), 15.
⁶³ See, eg, James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human
Condition Have Failed (New Haven, CT: Yale University Press, 1998), 14: ‘Scientific forestry was
originally developed from about 1765 to 1800, largely in Prussia and Saxony. Eventually, it would
become the basis of forestry management techniques in France, England, and the United States
and throughout the Third World. Its emergence cannot be understood outside the larger context of
II. Cameralism 419
their reach even further. They came to ‘address the workings of the society the
prince governed and the total relation of everybody’s productive activities’.⁶⁴ In
this broader sense, Cameralism clearly operated within the frame of the state as
universitas and even as a type of patriarchical association that saw the prince as
the head of an extensive household: the commonwealth.⁶⁵
As expressed by such leading authorities as Veit von Seckendorff, Cameralism
was part of a modernizing movement that sought to assert the prince’s claim to
absolute authority against a background of feudal arrangements in which he was
merely primus inter pares with respect to his vassals. Seckendorff defined sover-
eignty as the ‘highest and greatest authority of the legitimately reigning prince
which he possesses over the estates and subjects of the principality, as well as over
the land itself’, and he argued that the prince maintained total power to control
and regulate all aspects of the principality’s material existence.⁶⁶ The patriarchal
elements of his analysis were thus not designed to restore a traditional structure of
authority; they were deployed as part of an agenda to forge a modern state.
That said, most of Seckendorff ’s manual was actually devoted to the best
methods of managing the prince’s own household and property and to the man-
ner in which the prince ‘should issue general instructions (Cammer-Ordnungen)
establishing boards or directorates of officials to supervise administrative work at
all levels’.⁶⁷ ‘To our eyes’, comments Raeff, ‘the minute and petty prescriptions for
the operation of offices and clerkships to be found in many Polizeiordnungen and
learned treatises of cameralist writers may seem naïve or slightly ridiculous’. But
they are ‘illustrative of the new concerns of government’ to promote the rational
organization of all public activity.⁶⁸
It is from the work of these Cameralist scholars that there emerges the basic
science of governmental resource accounting. In the Cameralist works we see a
standardization of the rules of administrative and revenue-gathering procedure;
the basic techniques provision of acquiring essential empirical data about the
territory, the economy, and the resources of the state (Staatenkunde, later called
Statistik); and accounts of the appropriate methods for constructing reports and
tables (Handlungsbilanz) to guide the business of budget production. These are
essential arts of governing.
the centralized state-making initiatives of the period. In fact, the new forestry science was a subdis-
cipline of what was called cameral science, an effort to reduce the fiscal management of a kingdom
to scientific principles that would allow scientific planning’.
⁶⁴ Mack Walker, ‘Rights and Functions: The Social Categories of Eighteenth-Century German
Jurists and Cameralists’ (1978) 50 Journal of Modern History 234–251, 236.
⁶⁵ See above ch 6, 159–164.
⁶⁶ Veit Ludwig von Seckendorff, Teutscher Fürstenstaat [1656] (Glashütten: Auvermann, 1976);
cited in Hubert C Johnson, ‘The Concept of Bureaucracy in Cameralism’ (1964) 79 Political Science
Quarterly 378–402, 382.
⁶⁷ Johnson, ibid, 382–383.
⁶⁸ Marc Raeff, ‘The Well-Ordered Police State and the Development of Modernity in
Seventeenth- and Eighteenth-Century Europe: An Attempt at a Comparative Approach’ (1975) 80
American Historical Review 1221–1243, 1230.
420 Potentia
The Cameralist movement received its most powerful official impetus from
the reforms of Friedrich Wilhelm I of Prussia (1713–1740). Within a few years
of accession, the soldier-king ‘had transformed the administrative landscape of
Brandenburg-Prussia’ by centralizing all the revenue-gathering departments and
then merging them into ‘an omnicompetent super-ministry’ with the objective of
forging ‘an organic pan-territorial body of expertise out of a plurality of separate
specialist knowledges’.⁶⁹ He then sought to consolidate these achievements by
promoting the appropriate professional training for civil servants. Complaining
that law students were receiving an inadequate training in economics and finance,
Friedrich Wilhelm in 1717 established the first chairs in Kameralwissenschaften at
the universities of Halle and Frankfurt an der Oder.⁷⁰ These programmes of study
were designed to prepare students ‘for the vita activa in public affairs while imbu-
ing them with the ethical and spiritual values of Pietism’,⁷¹ and to strengthen the
position of university-trained officials in the governmental service.
The most influential and prolific scholar of the late-Cameralist period was
JHG von Justi, professor of cameral science in Vienna in the 1750s, who later
acted in the governmental service of the Danish and Prussian states.⁷² At this
later stage of its development the boundaries of Cameralism—between adminis-
trative arrangements and broader social controls—were becoming blurred. This
ambiguity caused specific difficulties with respect to the relationships between
Cameralism, economics (Oeconomie), and regulation/policing (Polizei). In its
traditional formulation, as Tribe explains, ‘cameralism is principally concerned
with the administration of a state; Oeconomie relates this activity of administra-
tion materially to the objective of happiness; and Polizei concerns itself with the
general condition of order prevailing in the state’.⁷³ But Justi took an expansive
approach, one which tended to absorb Cameralism into a more general ‘sciences
of the state’ (Staatswissenschaften).
In his Staatswirtschaft of 1755, Justi claimed that: ‘The highest power consists
in the use of the total wealth and powers of the state to achieve its ultimate goals,
namely the attainment of common happiness’.⁷⁴ The key to this objective and the
⁶⁹ Christopher Clark, Iron Kingdom: The Rise and Downfall of Prussia, 1600–1947 (London:
Penguin, 2007), 85–94.
⁷⁰ On the nature and achievements of the Halle chair, see Axel Rüdiger, Staatslehre und
Staatsbildung: Die Staatswissenschaft an der Universität Halle im 18. Jahrhundert (Tübingen: Max
Niemeyer Verlag, 2005). It might be noted that Christian Thomasius, who worked in the tradition
of Grotius and Pufendorf (see above ch 2, 74–83) was Rector of Halle University from 1710 until
1728.
⁷¹ Raeff, above n 68, 1232.
⁷² See Ulrich Adam, The Political Economy of J.H.G. Justi (Oxford: Peter Lang, 2006); Tribe,
above n 59, 537–541.
⁷³ Keith Tribe, ‘Cameralism and the Science of Government’ (1984) 56 Journal of Modern
History 263–284, 266.
⁷⁴ Johann HG von Justi, Staatswirtschaft [1755] (Aalen: Scientia, 1963), vol 1, 48: cited in
Lindenfeld, above n 62, at 25.
II. Cameralism 421
‘basis for a genuine cameral science’ lay in what he called Polizeiwissenschaft.⁷⁵

This science of police was presented in four main parts: the cultivation of the land
and its people, both through agricultural improvements and by promoting the
conditions of healthy urban living; measures to enhance economic performance
and trade; the promotion of the ethical condition of the people by supervision of
religion, education, and work; and ensuring the maintenance of law and order.
Justi’s scheme was widely adopted in later works. But this moment of expansion
of the reach of Cameralism to encompass all actions of government in regulating
social life coincided with an erosion of the principles on which the movement was
based.⁷⁶ With the publication of Smith’s Wealth of Nations, the key assumption
of Cameralism—that there is no aspect of social life which is not the product of
the well-ordered commonwealth—was undermined. Smith agued that society
is equipped with a self-regulating mechanism and that this mechanism works
most effectively when not subject to the type of controls that governments seek
to impose.⁷⁷ Thereafter, the underlying assumptions of Cameralist science were
challenged by proponents of the newly emerging principles of political econo-
my.⁷⁸ These criticisms necessitated some reordering of Cameralist thought,⁷⁹ and
⁷⁵ Johann HG von Justi, Grundsätze der Policeywissenschaft [3rd edn, 1782] (Frankfurt am
Main: Sauer & Auverman, 1969), Foreword: cited in Lindenfeld, above n 62, 26.
⁷⁶ In examining the development of Cameralist thought, it should not be assumed that this
body of thought actually exerted a powerful influence on the administrative practices of the
Kammer: see Keith Tribe, Governing Economy: The Reformation of German Economic Discourse
1750–1840 (Cambridge, Cambridge University Press, 1988), 10–17. Wakefield presents this argu-
ment in a more radical form: ‘The cameralists . . . painted beautiful pictures of well-ordered police
states, complete with thriving population, useful sciences, flourishing manufactures, industrious
farmers, and disciplined state officials blessed with knowledge and integrity. They did it because
their lives depended on it. Justi floated from country to country, hawking one project after another
and trying to live from his writings. . . . Cameralism was the public face of secret things; cameral-
ists were publicists for the Kammer. Cameralism did not simply reflect administrative practice
in the well-disciplined German principalities, nor was it wholly unrelated to fiscal administra-
tion. Rather, cameralists created the well-ordered police state through their ordinances, books,
and treatises. But behind these well-ordered visions lurked a disordered world of fear and frustra-
tion. For all his profound administrative maxims and chemical principles, Justi failed to control
the human and natural worlds, ultimately sinking under the weight of bad iron ore and confused
account books. . . . Seckendorff, who sang the praises of Pious Ernst and his model principality, was
plagued by the disorder and dishonesty of Gotha’s Kammer. Cameralists were fiscal propangan-
dists. They argued that a well-organized structure of human and natural sciences . . . would yield
prosperity . . . they presented themselves as servants of the general welfare. In the secret space of
the Kammer, however, these same cameralists focused resolutely on the interests of the prince and
his treasure, developing new techniques to fleece the people. As the public representation of secret
affairs, the cameral sciences were fundamentally dishonest’: Andre Wakefield, The Disordered
Police State: German Cameralism as Science and Practice (Chicago: University of Chicago Press,
2009), 141–142.
⁷⁷ See above ch 12, 346–350.
⁷⁸ On which see Tribe, above n 73, 277–284.
⁷⁹ Tribe, ibid, 284: ‘Whereas Polizei encountered its limit in the apparent inexhaustibility of
the objects that could be regulated, the new liberalism [based on Smith’s principles of political
economy] in the perpetual invasion of that which it had expelled, the State; or more exactly, it
encountered its limit in the distinction which it had constructed between the self-regulating order
of society and the law-making instance of the State’.
422 Potentia
it is through that reordering that the foundations of modern administrative sci-
ence emerged.
III. The Police Power
Cameralism came into existence as an attempt to develop a science of public

administration. By failing to draw a clear distinction between government and
state, however, the Cameralists tended to assume that the ruler had responsibil-
ity for the entire workings of the social body. Once Cameralist principles were
extended from efficient management of the revenues of the prince to the effi-
cient management of the workings of the social body, the powers of government
expanded considerably. The scope of government powers apparently embraced
all aspects of social life. The cameral sciences were correspondingly enlarged
and included such subjects as law, politics, statistics, and history. It is from this
enlargement that the field of Staatswissenschaften (the sciences of the state) was
established.⁸⁰
The core concept of the sciences of the state is that of police (Policey or Polizei).
The range of this concept is exemplified by the anthropomorphic definition given
by Günther von Berg in his Handbuch des Policeyrechts in 1802:
Policey is like a well-intentioned genius who carefully levels the way for those committed
to his care; cleans the air that they breathe; secures the villages and holdings in which
they dwell, and the streets along which they walk; protects the fields that they cultivate,
secures their homes against fire and flood, and they themselves against illness, poverty,
ignorance, superstition and immorality; who, even if he cannot prevent all accidents,
seeks however to diminish and ease their consequences, and offers refuge in time of need
to every pauper, casualty or person in need. Its watchful eye is ubiquitous; its helping
hand is ever-ready, and we are invisibly surrounded by its unceasing care.⁸¹
Polizei, the power of police, was conceived as an all-encompassing power of regu-
lation vested in the ruler for the purpose of promoting peace, order, and good
government. This police power formed part of the prerogatives of the ruler and,
in the hands of the Cameralists, was regarded as a ‘non-juridical form of regula-
tion, a form of order not based on Law’.⁸² This type of formulation expresses
the notion that Polizei exists not so much to enforce rule-based order as to instil
social discipline based on the calculation of possible future risks to the ordered
commonwealth.
⁸⁰ See Lindenfeld, above n 62, esp 33.

⁸¹ Günther Heinrich von Berg, Handbuch des Teutschen Policeyrechts (Hannover: Gebrüder
Hahn, 2nd edn, 1802), vol 1, 1–2; cited in Tribe, above n 73, 274. Cf Webb’s similar statement:
Sidney Webb, Socialism in England (London: Swan Sonnenschein, 1890), 116–117.
⁸² Tribe, above n 73, 266.
This relationship between police power and law would eventually become a
critical issue in the framing of modern governmental powers: the distinction
between ‘justice’ and ‘police’, reflecting that between jurisdictio and gubernatio,
was ultimately an expression of the deeper distinction on the nature of the state
as societas and universitas. In the German context, this distinction acquired a par-
ticular significance after the Peace of Westphalia, since this was the period that
saw the emergence of the discipline of Staatsrecht. Staatsrecht developed under the
influence of jurists such as Hermann Conring, who applied more realistic, empir-
ically orientated interpretative methods to explain the legal relationship between
the emperor and the territorial princes.⁸³ Far from being antagonistic, however,
the emerging legal doctrines tended to complement those of the cameral sci-
ences. Consequently, it was not surprising to see the public lawyer (Staatsrechtler)
commonly making a distinction—paralleling that between ordinary and abso-
lute prerogative powers—between justice and police. Issues of justice concerned
the exercise of those public powers that were subject to the jurisdiction of the
Imperial Court, while matters of Polizei referred to the exercise of public powers
that were vested absolutely in the prince.
This distinction was not unique to German jurisprudence. The concept of
police had been used in the French system (from which the expression derives)
from the late-fifteenth century.⁸⁴ In Britain, the term was first used officially in
1714, when Queen Anne appointed 10 commissioners of police in Scotland with
responsibility ‘for the general internal administration of the country’.⁸⁵ During
the eighteenth century, the term came to be more widely adopted as the expression
of a regulatory power that vested in the ruling authorities. This reached its apogee
in the 1760s, exemplified by Adam Smith’s lectures on jurisprudence at Glasgow
University, which were organized around the critical distinction between justice
and police. Maintaining that jurisprudence ‘is the theory of the rules by which
civil governments ought to be directed’, Smith argued that the ‘chief design of
⁸³ Conring, it might be noted, had been educated in the Netherlands and was a disciple of
Lipsius: see Oestreich, above n 15, 99. On Conring, see also above ch 2, 79 (n 160).
⁸⁴ See, eg, Jeremy Bentham, Principles of Morals and Legislation in his A Fragment of Government
and An Introduction to the Principles of Morals and Legislation Wilfrid Harrison (ed) (Oxford:
Blackwell, 1948), 113–435, 323 (n 2): ‘As to the word police, though of Greek extraction, it seems
to be of French growth: it is from France, at least, that it has been imported into Great Britain,
where it still retains its foreign garb: in Germany, if it did not originate there, it has at least been
naturalized’. See also Raeff, above n 52, 5: ‘Police had the connotation of administration in the
broadest sense, that is, institutional means and procedures necessary to secure peaceful and orderly
existence for the population of the land (that is, territory). Police in this sense, obviously a sense
derived directly from polis, was apparently first used in Burgundy (hence the original German
spelling policie and policey) in the late fifteenth century, from where it passed to the Hapsburg
chanceries’. See further, Gerhard Sälter, Polizei und soziale Ordnung in Paris: Zur Entstehung und
Durchsetzung von Normen im städtischen Alltage des Ancien Regime (1697–1715) (Frankfurt am
Main: Klostermann, 2004).
⁸⁵ ‘Police’, OED. The OED also reports that a writer in the British Magazine in 1763 took the
view that ‘from an aversion to the French and something under the name of police being already
established in Scotland, English prejudice will not soon be reconciled to it’.
424 Potentia
every system of government is to maintain justice’. But once this basic objective
(‘the internal peace’) is secured, ‘the government will next be desirous of pro-
moting the opulence of the state’.⁸⁶ This latter task is that of police: ‘Whatever
regulations are made with respect to trade, commerce, agriculture, manufactures
of the country are considered as belonging to the police’.⁸⁷ These regulations, he
argues, fall into three main branches: infrastructure (roads, sanitation, etc), secu-
rity, and trade. This power of police was assuming a heightened importance as a
consequence of industrialization and urbanization. The governmental challenge
was increasing, especially since ‘those cities where the greatest police is exercised
are not those which enjoy the greatest security’.⁸⁸
Although reticent about borrowing a French concept, Blackstone’s
Commentaries do discuss the king’s responsibilities for ‘the public police and
œconomy’, by which he means ‘the due regulation and domestic order of the king-
dom: whereby the individuals of the state, like members of a well-governed fam-
ily, are bound to conform their general behaviour to the rules of propriety, good
neighbourhood, and good manners; and to be decent, industrious, and inoffen-
sive in their respective stations’.⁸⁹ The concept of police was used by Beccaria⁹⁰
and Bentham⁹¹ in their attempts to systematize and categorize offences, with the
⁸⁶ Adam Smith, Lectures on Jurisprudence [1760s] RL Meek, DD Raphael, and PG Stein (eds)
(Oxford: Clarendon Press, 1978), 5.
⁸⁷ Ibid.
⁸⁸ Ibid, 332. Smith notes: ‘London is the largest city in Europe, at least larger by a third than
Paris, and should therefore stand the more in need of regulations of this sort. But we find that in
Paris great care is taken in this way. The collection of statutes on this head made by De La Marre
makes four large folios . . . so that the police there is a very burthensome part of the law’ (the refer-
ence is to Nicolas De La Marre, Traité de la Police, où l’on trouvera l’ histoire de son établissement, les
fonctions et les prerogatives de ses magistrats, toutes les loix et tous les règlements qui la concernent (Paris,
1705–1738)).
⁸⁹ William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769),
vol 4, 162.
⁹⁰ Beccaria maintained that police was an object of public economy and comprehended ‘the
sciences, education, good order, security and public tranquillity’: Cesare Beccaria, Elementi di
economica pubblica (1804); cited in Pasquale Pasquino, ‘Theatrum Politicum: The Genealogy of
Capital—Police and the State of Prosperity’ in Graham Burchell, Colin Gordon, and Peter Miller
(eds), The Foucault Eff ect: Studies in Governmentality (Hemel Hempstead: Harvester Wheatsheaf,
1991), 105–118, 109.
⁹¹ Bentham, above n 84, ch 16, which provides a comprehensive account of types of offences.
Bentham comments (at 323, n 2) that the concept of police ‘seems to be too multifarious to be
susceptible of any single definition. Want of words obliged me to reduce the two branches here
specified into one. Who would have endured, in this place, to have seen two such words as the
phthano-paranomic or crime-preventing and the phthano-symphoric or calamity-preventing, branches
of the police? The inconvenience of uniting the two branches under the same denomination, are,
however, the less, inasmuch as the operations requisite to be performed for the two purposes will
in many cases be the same. Other functions, commonly referred to the head of police, may be
referred either to the head of that power which occupies itself in promoting, in a positive way, the
increase of the national felicity, or of that which employs itself in the management of the public
wealth’. Cf Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American
Government (New York: Columbia University Press, 2005), 69: ‘Given Bentham’s insistence on
precision, which generated the excruciatingly detailed taxonomies scattered throughout his work,
this is an extraordinary admission. If Bentham can’t define it, one might think, then no one can.
police power being specified as a preventive power ‘which is employed in guard-

ing against mischiefs resulting from the delinquency of internal adversaries, by
expedients that come to be applied beforehand; or of that which is employed
in guarding against the mischiefs that might be occasioned by physical calam-
ities’.⁹² Further, when Thomas Jefferson, as Governor of Virginia, reformed the
College of William and Mary in 1779, he established a chair of law and police for
the purpose of giving state officials an education in the science of police similar to
that which had already been established in continental Europe.⁹³
The concept of police was thus widely recognized in eighteenth-century
European jurisprudence and was acquiring an enhanced importance in the light
of the growth in responsibilities of modern government. But its nature and scope
remained ambiguous. Since Polizei was directed to the maintenance of commu-
nal order, writers ‘had of necessity to analyse this condition of order (and thereby
the purpose of the State itself) as well as the methods and means for the realisa-
tion of this condition’.⁹⁴ As Kneyemer recognizes, however, there were as many
statements on the scope of the police power as there were views on the nature and
purpose of the state. It was axiomatic that the police power was concerned with
the order, security, and welfare of the state and its citizens, but beyond this gener-
ality a great deal remained unsettled.
This ambiguity was bound up with uncertainties concerning the susceptibil-
ity of Polizei to judicial control. In German lands, it was assumed that the police
power was executive action operating beyond the scope of judicial review.⁹⁵ This
immunity from judicial oversight was a source of pressure during the nineteenth
century to remove welfare functions from the scope of the police power, and this
pressure contributed to the shift in the meaning of police to the modern sense
of institutional authority to maintain order and security. But if the relationship
between justice and police is placed to one side for the moment, it can be seen
that the police power—a power of potentia derived from government’s control of
And yet Bentham doesn’t reject the concept as useless, as one might expect. Famously, he was not
so kind to other concepts of uncertain scope, such as the idea of natural rights’.
⁹² Bentham, above n 84, 326.
⁹³ Dubber, above n 91, 89–90.
⁹⁴ Franz-Ludwig Knemeyer, ‘Polizei’ (1980) 9 Economy and Society 172–196, 180 (a transla-
tion by Keith Tribe of Knemeyer’s entry on the subject in the Geschichtliche Grundbegriff e, vol 4,
875–897).
⁹⁵ See, eg, a Prussian law of 1735 which stated: ‘We wish the Policey-Wesen in our lands to be
fundamentally revised, and thus for the welfare of our lands we propose to establish and publish
regulations (Verfassungen) which will reformulate completely the distinction between jurisdiction
and court investigation in Politizeisachen, thus: when in the future some one person acts contrary
to our Policey-Verfassungen, the investigation, punishment and chastisement of such offender, who-
ever it might be, will be the responsibility of the Magistrate and no other; the last being charged to
investigate summarily and as rapidly as possible, and this authority then to determine appropriate
sentence without appeal, then fully to carry out aforesaid sentence. We therefore command our
institutions of the Judiciary to refrain in the future from the consideration of Policey-Sachen’; cited
in Knemeyer, ibid, 178–179.
426 Potentia
resources—was acquiring a very broad scope. The modern scope of potentia can
best be gleaned by briefly considering the analysis of the leading American work.
Ernst Freund’s study of the police power in American public law, published in
1904, had as its main objective the task of assigning a place for the police power
within the range of governmental power.⁹⁶ Freund argues that legal analyses of
governmental power are most commonly presented according to organizational
factors, specifically by the division into legislative, executive, and judicial pow-
ers. Only rarely is governmental power examined substantively by reference to
objectives. But only by doing so, he claims, can the scope and nature of the police
power adequately be specified. Accordingly, the nature of the police power is
identified by reference to its two main objectives: that ‘it aims directly to secure
and promote the general welfare, and it does so by restraint and compulsion’.⁹⁷
Thus specified, the police power is defined as ‘the power of promoting the public
welfare by restraining the use of liberty and property’.⁹⁸
The main body of Freund’s work is devoted to a detailed and comprehensive
account of the categories of the police power differentiated according to social
and economic interests. Powers to protect social interests fall under the categories
of peace and security from crime (including riot, vagrancy, and immigration),
public safety and health (including dangerous substances, activities and working
conditions, and the regulation of births, deaths, and marriages), public order and
comfort (controls over commerce, highways, building, and development), public
morals (such as restrictions on gambling, alcohol, obscenity, prostitution, and
cruelty to animals), and dependency (including regulations concerning insan-
ity, education, and poverty). Powers to protect economic interests fall under the
categories of protection against fraud (weights and measures, food safety, and
trading standards), protection of debtors (usury and bankruptcy arrangements),
labour protection (employment conditions, wage regulation, and union recogni-
tion), and control of corporations (incorporation procedures, anti-trust, price-
fi xing, and monopolistic practices).
The range of these powers is indicative of the extensive regulatory responsi-
bilities of modern government. Furthermore, rather than involving an exercise
of rule-based command by some remote central authority, these powers can be
seen to exist for the purpose of maintaining a disciplined order. They are intrin-
sically powers of time and place. It is because of this latter quality that Freund
recognizes that the police power is revealed ‘not as a fi xed quantity, but as the
expression of social, economic and political conditions’. As long as these condi-
tions vary, he explains, ‘the police power must continue to be elastic, ie, capable
of development’.⁹⁹
⁹⁶ Ernst Freund, The Police Power: Public Policy and Constitutional Rigths (Chicago:
Callaghan & Co, 1904).
⁹⁷ Ibid, 3.
⁹⁸ Ibid, iii.
⁹⁹ Ibid, 3.
Freund’s work offers a useful overview of the range of police powers in modern
government across the western world. But although revealing its scope, Freund’s
account—like most juristic analyses—does not dig deep to reveal the essential
reasons for the existence of the power. The most incisive account of the founda-
tions of the police power remains that offered by Rousseau in his Discourse on
Political Economy of 1756.
In the Political Economy, Rousseau recognizes that the origins of economy lie in
‘the wise and legitimate government of the household’. But he maintains that the
government of the state cannot be like that of a family, if for no other reason than
that its (modern) foundations are so different.¹⁰⁰ Rousseau draws a sharp distinc-
tion between private and public economy and equates public economy to gov-
ernment. The governing power is the executive power. And in contradistinction
to sovereignty—that is, the legislative right that binds the nation—the executive
power obligates individuals. The overriding duty of government, he explains, is
‘to follow the general will’, and this general will ‘always tends to the preserva-
tion and well-being of the whole and of each part’. From this account, Rousseau
derives his first rule of public economy: that in exercising executive powers, the
administration must conform to the laws.¹⁰¹
This does not, at first glance, suggest that a clear line is being drawn between
justice and police, between sovereignty and government: Rousseau seems to be
saying that the task of government is merely to ensure the realization of the gen-
eral law. This is deceptive. Rousseau argues that although government is not the
master of the law, ‘it is a considerable thing to be its guarantor’.¹⁰² While it is ‘a
considerable accomplishment to have brought the rule of order and peace to all
parts of the republic’, he suggests that ‘if one does no more than this, it will all be
more appearance than reality’.¹⁰³ To make that ideal a reality, a powerful govern-
ment is needed. One of its key tasks must be to make men ‘what one needs them
to be’. For that, government cannot be confined to the issuance of rules: ‘the most
absolute authority is that which penetrates to man’s inmost being, and affects his
will no less than it does his actions’.¹⁰⁴ Government requires not merely the set-
ting of laws, but the making of the people. In order to command people, rulers
must first form people.
The second rule of public economy, then, is to ensure that all particular wills
take their bearing from the general will. ‘It is not enough to tell the citizens,
be good’, contends Rousseau, ‘they have to be taught to be so’.¹⁰⁵ The ancients
understood this, which is why we then had ‘the many sumptuary laws, the
¹⁰⁰ Jean-Jacques Rousseau, Discourse on Political Economy [1756] in The Social Contract and
1997), vol 2, 3–38, 3.
¹⁰¹ Ibid, 9, 6, 11.
¹⁰² Ibid, 11.
¹⁰³ Ibid, 12.
¹⁰⁴ Ibid, 12–13.
¹⁰⁵ Ibid, 19.
428 Potentia
many regulations regarding morals, the many public maxims that were adopted
or rejected with the utmost care’.¹⁰⁶ This is no less a task in the modern world.
Government must become an extensive undertaking in order to further the ide-
als of the law (ie, droit politique). Among these important tasks are those of pre-
venting ‘extreme inequality of fortunes’, of ensuring an even distribution of the
population across the territory, and of maintaining a balance between agricul-
ture, industry, and commerce. These are tasks that require active oversight since
the ‘evils [are] difficult to cure by the time they make themselves felt, but which
a wise administration must prevent in order to maintain . . . respect for the laws,
love of fatherland, and the vigour of the general will’.¹⁰⁷ Rousseau here provides
a modern explanation of the police power. Government must be equipped with
extensive powers of regulating, guiding, and controlling precisely for the purpose
of being able to realize the general will.
This argument yields the third essential rule of public economy. It is not enough
to protect citizens: government must assume the task of educating the people,
must give active consideration to their means of subsistence, and must provide
for public needs.¹⁰⁸ The importance of these tasks causes Rousseau to outline the
organizational principles of public revenue. In offering this sketch of administra-
tive methods, he is at pains to emphasize that the duty of government is not that
of ‘filling the granaries of individuals and exempting them from work’. Rather, it
is to generate sufficient resources so as to keep plenty ‘so within their reach that,
in order to acquire it, work is always necessary and never useless’.¹⁰⁹
Rousseau here presents us with a profound account of the police power.
Although having strands linking the police power to patriarchal forms of gov-
ernment, he emphasizes its modernizing aspects, those that tie the exercise of
the police power to the requirements of justice, that link executive powers to
the legislative, and connect government to sovereignty. But within his republi-
can account of regulation in the name of freedom, the dangers are also evident.
Rousseau notes that the state ‘cannot endure without freedom, nor freedom with-
out virtue, nor virtue without citizens’. You will ‘have everything if you form citi-
zens’. But he also warns that ‘if you do not, you will have nothing but nasty slaves,
beginning with the chiefs of the state’.¹¹⁰ In his elaboration of the driving prin-
ciples of police power, Rousseau highlights the tension in the emergence of the
police power between social liberation and bureaucratic oppression, tensions that
form deep fissures running through the entire modern debate about the exercise
of this regulatory power.
As Rousseau indicates, the police power is an expression of the modern power
of potentia. In this sense, Raeff is right to suggest that ‘the goals and practices of
the well-ordered police state not only foreshadowed but endeavoured to imple-
ment the notions usually associated with the Enlightenment’.¹¹¹ In promoting
¹⁰⁶ Ibid, 13. ¹⁰⁷ Ibid, 19–20. ¹⁰⁸ Ibid, 22, 23.
¹⁰⁹ Ibid, 23. ¹¹⁰ Ibid, 20. ¹¹¹ Raeff, above n 52, 252.
the concept of police power, Cameralism and its heirs ‘laid the institutional foun-
dations and identified the principles and specific goals that the philosophes subse-
quently proclaimed to be the moral basis for modern society’.¹¹²
IV. Justice and Police
Rousseau highlighted both the ideals and the dangers of the emerging police
power, and thereby exposed the ambiguities at the core of Enlightenment ration-
alism. Potentia emerges to realize liberty and promote welfare, but its extensive
regulatory and disciplinary power also carries the threats of bureaucratization
which can lead to servitude. This dilemma is experienced by all governing
regimes. But since these risks were magnified in systems such as the Prussian
authoritarian welfare state,¹¹³ it is perhaps not surprising that the debate over
the relationship between justice and police figured especially prominently in the
German literature.
With the expansion of the police power in Germany, the manner of its exercise
became more formalized. It was recognized, by analogy with the absolute prerog-
ative, that the exercise of such powers could not be unlimited and that bounda-
ries had to be fi xed. As experience in the use of police powers was acquired, the
procedures through which they were exercised also became standardized. Once
boundaries to their exercise were set and procedures for their use established, the
relationship between police and justice was placed in question.
The standard Cameralist position on the relationship between justice and police
is exemplified by Justi. Justi argued that although justice (Gerechtigkeit) provided
the internal stability that enabled society to function, the ‘management of jus-
tice’ is ‘separate from the science of laws’. Jurisprudence (Rechtsgelehrsamkeit), he
explained, ‘is a special science which consists mainly in knowing the valid laws
that exist in a state. Accordingly, it has nothing to contribute to the complex of
sciences’ known as Polizeiwissenschaft.¹¹⁴ The point Justi was highlighting is that
every state must be well-ordered: ‘the various classes of the people, ruling and
ruled, must stay in the right [gerecht] relation with respect to one another’.¹¹⁵ But
this good-ordering is a matter for political science, for police, and not for juris-
prudence. Jurisprudence is merely a science of validity: only Polizeiwissenschaft
can yield a science of right-ordering. Justi’s analysis, it might be noted, offers one
type of resolution of the question of political jurisprudence,¹¹⁶ though one that
¹¹² Raeff, ibid.

¹¹³ See, eg, Hermann Beck, The Origins of the Authoritarian Welfare State in Prussia:
Conservatives, Bureaucracy, and the Social Question, 1815–1870 (Ann Arbor: University of
Michigan Press, 1995).
¹¹⁴ Justi, above n 74, vol 1, 132–133; cited in Walker, above n 64, 240.
¹¹⁵ Justi, above n 75, 3; cited in Walker, above n 64.
¹¹⁶ Cf above ch 6.
430 Potentia
is peculiarly well-fitted for a Beamtenstaat in which the civil servants oversee the
entire functional system.
It is evident from Justi’s account that from the perspective of police powers
there exists a sharp division between rights-orientated and policy-functional
approaches. This replicates the tension already outlined in the science of political
right, and which is exemplified by the writings of Kant and Hegel respective-
ly.¹¹⁷ For Kant, the state is solely a sphere of rights-based individual freedom.
Consequently, the goals of welfare and happiness promoted by the science of
police form no part of the sciences of the state. Kant did recognize the practical
necessity of government attending to certain basic aspects of police, ‘for public
security, convenience, and decency’. But these tasks are to be justified only on the
ground of maintaining the peace and thereby facilitating the task of maintaining
the law.¹¹⁸ Kant’s narrowing of police to those tasks needed to maintain the law
or to provide security was characteristic of a particular style of juristic reasoning,
though many who followed his lead experienced great difficulty in fitting many
of the conventional tasks of government, such as educational provision, with this
narrow definition of police.¹¹⁹ For Hegel, by contrast, the claims of abstract right
led only to the creation of inequalities in civil society, inequalities that could be
alleviated only by the exercise of police powers. Only by application of the regula-
tory powers of government could functions and rights be brought into accord.¹²⁰
This debate over the relation between justice and police gives us a particular
insight into the importance of the German debate on the Rechtsstaat.¹²¹ Seeking
to remove altogether the welfare aspect from the domain of government, the
Kantians proposed an account of the Rechtsstaat as a rule order that stood directly
opposed to the Poliziestaat, a governing regime in which the regulatory opera-
tions of police are so extensive that they are capable of interfering with virtually
all aspects of personal conduct, and thus are corrosive of (negative) liberty. This
Kantian theme flows through the work of liberal jurists such as Karl von Rotteck,
who claimed that:
No governmental power is more dangerous to freedom than that of Polizei—not sim-
ply the so-called superior or secret police, but the so-called welfare Polizei above all.
The prime function of the state should be solely to secure the domination of the Law.
According to basic constitutional principles there is only one possible place for Polizei
and that is responsibility for security and order in the state. What is known as welfare
¹¹⁷ Above chs 4 and 5.

¹¹⁸ Immanuel Kant, Metaphysical Elements of Justice [1797] (Part I of the Metaphysics of Morals;
known as the Rechtslehre) John Ladd (trans) (Indianapolis: Hackett, 1999), 131–132.
¹¹⁹ See Lindenfeld, above n 62, 82: ‘The dilemma was clear in the most ambitious work of the
period: the seven-volume Handbook of German Public Law (1802–1808) by Günther Heinrich von
Berg . . . Th is was a grand attempt at codification. Berg began with the security criterion, but by
volume 4 he had changed his mind: welfare and happiness could not be excluded’.
¹²⁰ GWF Hegel, Philosophy of Right [1821] TM Knox (trans) (Oxford: Oxford University Press,
1952), §§230–249.
¹²¹ Cf above ch 11, 317–321.
Polizei (especially surveillance and welfare Polizei) is nothing but open interference with
the freedom of the citizen.¹²²
Especially influential in this period was Robert von Mohl, who revitalized the
sciences of the state in the early-nineteenth century and, recognizing the grow-
ing importance of the ‘social question’, sought to reconcile the competing claims
of Rechtsstaat and Polizeistaat. This was most clearly manifest in his book, Die
Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates (The Science of Police
according to the Principles of the Rechtsstaat).¹²³ In this work, he restored the
welfare aspect of the police power and sought to extend juristic analysis beyond
the restrictive frame of negative liberty. Mohl’s basic thesis was that governments
deploy the police power mainly for the purpose of removing those obstacles to the
realization of individual potential.
Mohl’s line was given a more explicitly Hegelian twist by Lorenz von Stein,
Professor for Staatswissenschaft und Nationalökonomie in Vienna from 1855 to
1888. In his influential study of social development in France, we see the elem-
ents of his solution. Stein argued that ‘the principle of the state consists of elevat-
ing all individuals to complete freedom and to their fullest personal development’
and since society, by contrast, ‘consists of the subjugation of some individuals
by others’ it is only through the state that this dependency can be overcome.¹²⁴
Society and state stand opposed to one another but are inextricably linked. As a
consequence, social life can be understood only by ‘comprehending the nature
and strength of these two elements’ and recognizing that ‘their actions, though
contradictory, are yet regulated by a common higher principle’. In Stein’s ana-
lysis, rule order ( Justiz) and regulatory order (Polizei) are bound together, though
when he claims that ‘the struggle between them produces a movement regulated
by definite and intelligible laws’¹²⁵ it is evident that he is searching for the con-
cept of droit politique.¹²⁶
Justice and police evidently had to be brought into some sort of accommo-
dation, and by the latter-half of the nineteenth century this was coming to be
addressed by the notion of administrative law (Verwaltungsrecht).¹²⁷ For Stein,
the problem was that the concept of the Rechtsstaat appeared to leave no space for
¹²² JCAM von Aretin and K von Rotteck, Staatsrecht der constitutionellen Monarchie (Leipzig:
2nd edn, 1839); cited in Knemeyer, above n 94, 188.
¹²³ Robert von Mohl, Die Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates [1832]
(Tübingen: Laupp, 3rd edn, 1866).
¹²⁴ Lorenz von Stein, The History of the Social Movement in France, 1789–1850 [1850] Kaethe
Mengelberg (trans) (Totowa, NJ: Bedminster Press, 1964), 56.
¹²⁵ Ibid.
¹²⁶ Stein developed this argument further in his System der Staatswissenschaften (Tübingen:
Cotta, 2 vols, 1852–1856), though this ambitious work ‘based on dialectical principles, promised
more than Stein himself could deliver’: Lindenfeld, above n 62, 169.
¹²⁷ See Johann Christian Pauly, Die Entstehung des Polizeirechts als wissenschaftliche Disziplin:
Ein Beitrag zur Wissenschaftsgeschichte des öff entlichen Rechts (Frankfurt am Main: Klostermann,
2000).
432 Potentia
an appropriate juristic treatment of administration. Stein argued that Polizei was
best understood as ‘the totality of all administrative measures to be taken for the
protection of the general interest’.¹²⁸ How this administrative activity was recon-
ciled to the claims of jurisdiction (jurisdictio) became the subject of the emerging
discipline of administrative law. Th is reworking of the field did little to resolve the
conceptual problems.¹²⁹ From the outset, administrative law has been plagued
by a tension between a rights orientation and a functional orientation: is the sub-
ject of administrative law to be understood as the means of judicial control over
administrative action (the Kantian legacy), or as the legal framework through
which the regulatory arrangements of police powers are organized (the Hegelian
approach)? But the general message of this analysis is that the legal challenges of
the contemporary welfare state can most clearly be perceived through the lens of
‘the well-ordered police state’.¹³⁰
V. The Growth of Administrative Power
In Chapter 6, we examined Mann’s thesis that the growth of the modern state
has been accompanied by a decline in ‘despotic power’ and an increase in ‘infra-
structural power’.¹³¹ In the modern era, he argues, the despotic power of the ruler
has declined, as it is subject to various institutional constraints, at the same time
as the infrastructural power of government has increased, in accordance with
government’s enhanced capacity to organize and regulate social relations. We
have seen traces of Mann’s thesis in the argument, presented in Chapter 13, that
modern governmental developments have led to the control, transformation, and
sublation of prerogative power. This chapter considers an additional strand of
the argument, that relating to the growth of the administrative powers of gov-
ernment, otherwise potentia. This type of power, the exercise of which requires
government to assume control of substantial material resources, is geared to the
realization of educative, disciplinary, and regulatory goals. It has as its overriding
objective (in Justi’s words) ‘the enlargement of the internal power and strength
¹²⁸ Lorenz von Stein, Verwaltungslehre (8 vols, 1869–1884), vol 2, 73; cited in Lindenfeld, above
n 62, 199.
¹²⁹ This was part of a more general reconfiguration of the sciences of the state in the late-
nineteenth century. It led to the issues being dealt with ‘in terms of Verwaltungsrecht instead of
Polizeirecht, and National Economy as an element of Staatswissenschaft ceased to have any connec-
tion with Polizei’: Knemeyer, above n 94, 186. This reconfiguration was in part the consequence
of the Methodenstreit, in which the Austrian school of economists challenged the methods of the
dominant nineteenth-century historical school: see Lindenfeld, above n 62, 252–256; Keith Tribe,
Strategies of Economic Order: German Economic Discourse, 1750–1950 (Cambridge: Cambridge
University Press, 1995), ch 4. It is as part of this reconfiguration that we also see the emergence of
the positivist school of Staatsrecht: see above ch 7, 190–196.
¹³⁰ Raeff, above n 52, 254: ‘the modern welfare state presents us with an updated version of the
basic conceptions of the well-ordered police state’.
¹³¹ See above ch 6, 165–166.
V. The Growth of Administrative Power 433
of the State’,¹³² though it should be emphasized that potentia is directed mainly

towards socialization rather than coercion.
The emergence of this type of administrative power is linked to the processes of
modernization. That is, the ruling authority (Staatsgewalt) began to look beyond
its own traditional sources of revenue and towards its territory (Staatsgebiet) and
its people (Staatsvolk) as resources to be exploited and managed in the common
good. This is part of a general process of rationalization and it leads to standard-
ization and simplification across the range of government responsibilities—from
weights and measures to land registers.¹³³ This process of rationalization seems to
be simultaneously emancipatory and repressive. That is, although administrative
regulatory measures are deployed in the name of furthering principles of liberty
and equality, they are able to do so only by imposing uniformity on variety.¹³⁴ In
using their administrative powers to modernize the state, the ruling authorities
‘do not merely describe, observe and map; they strive to shape a people and land-
scape that will fit their techniques of observation’.¹³⁵
Administrative power—potentia—reveals a different aspect of the modern
state. The state presents itself neither as a coercive institution nor as a rights-
protecting institution but as a pastoral body. In this capacity, it claims ‘clear pri-
ority (if not complete monopoly) over the legitimate means of socialization within
a given territory’.¹³⁶ This development has been subject to radical critique of the
sort made famous by Proudhon and which throws into relief the destructive and
¹³² Justi, above n 75; cited in Knemeyer, above n 84, 181.

¹³³ Scott, above n 63, 2 : ‘How did the state gradually get a handle on its subjects and their envir-
onment? Suddenly, processes as disparate as the creation of permanent last names, the standard-
ization of weights and measures, the establishment of cadastral surveys and population registers,
the invention of freehold tenure, the standardization of language and legal discourse, the design of
cities, and the organization of transport seemed comprehensible as attempts at legibility and sim-
plification. In each case, officials took exceptionally complex, illegible, and local social practices,
such as land tenure customs or naming customs, and created a standard grid whereby it could be
centrally recorded and monitored’.
¹³⁴ Th is is a key theme of Constant’s writing. See Benjamin Constant, ‘The Spirit of Conquest
and Usurpation and their Relation to European Civilization’ [1814] in his Political Writings
Biancamaria Fontana (trans) (Cambridge: Cambridge University Press, 1988), 43–169, 73–74:
‘It is somewhat remarkable that uniformity should never have encountered greater favour than
in a revolution made in the name of the rights and liberty of men. The spirit of system was first
entranced by symmetry. The love of power soon discovered what immense advantages symmetry
could procure for it. While patriotism exists only by a vivid attachment to the interests, the ways
of life, the customs of some locality, our so-called patriots have declared war on all of these. They
have dried up this natural source of patriotism and have sought to replace it by a factitious passion
for an abstract being, a general idea stripped of all that can engage the imagination and speak to the
memory. To build their edifice, they began by grinding and reducing to dust the materials that they
were to employ. Such was their apparent fear that a moral idea might be attached to their institu-
tions, they came close to using numbers to designate their towns and provinces, as they used these
to designate the legions and corps in their army’.
¹³⁵ Scott, above n 63, 82.
¹³⁶ Gorski, above n 11, xvi.
434 Potentia
disempowering aspects of this development.¹³⁷ But there is a more complex story
to be told. It is evident that the growth of infrastructural power necessitated the
growth of administrative power and, if it were not to be a purely arbitrary force,
this administrative power—the power of police—also stood in need of rational-
ization. This is exactly what happened. The police power evolved simultaneously
with the late-eighteenth-century movement for codification. And codification
emerged ‘so as to provide a harmonious, regular, uniform, and stable legal frame-
work within which the dynamic forces of modernity, which had been prodded
into being by the Polizeistaat, might find their full scope and expression’.¹³⁸
The growth of administration is associated with the modernization and simpli-
fication of law, and these processes gave birth to the modern phenomenon of
administrative law.
¹³⁷ Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century John
Beverly Robinson (trans) (London: Pluto Press, 1989), 294: ‘To be governed is to be kept in sight,
inspected, spied upon, directed, law-driven, numbered, enrolled, indoctrinated, preached at, con-
trolled, estimated, valued, censured, commanded, by creatures who have neither the right nor the
wisdom nor the virtue to do so. To be governed is to be at every operation, at every transaction
noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorized,
admonished, prevented, forbidden, reformed, corrected, punished. It is, under pretext of public
utility, and in the name of the general interest, to be placed under contribution, trained, drilled,
ransomed, exploited, monopolized, extorted, squeezed, mystified, robbed; then, at the slightest
resistance, the first word of complaint, to be repressed, fined, despised, harassed, tracked, abused,
clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold,
betrayed; and to crown all, mocked, ridiculed, derided, outraged, dishonoured. That is govern-
ment; that is its justice; that is its morality’. Proudhon has his contemporary French followers.
See, eg, Jacques Rancière, Disagreement: Politics and Philosophy Julie Rose (trans) (Minneapolis:
University of Minnesota Press, 1999), 28–29: ‘Politics is generally seen as the set of procedures
whereby the aggregation and consent of collectivities is achieved, the organization of powers, the
distribution of places and roles, and the systems for legitimating this distribution. I propose to give
this system of distribution and legitimation another name. I propose to call it the police. . . . The
police is thus first an order of bodies that defines the allocation of ways of doing, ways of being, and
ways of seeing. . . . I now propose to reserve the term politics for an extremely determined activity
antagonistic to policing: whatever breaks with the tangible configuration whereby parties . . . are
defined by a presupposition that, by definition, has no place in that configuration’.
¹³⁸ Raeff, above n 68, 1240.
15
The New Architecture of Public Law
The modern state stands as a representation of the people and, in light of its
democratic foundation, is placed in the service of the people. Since the state now
concerns itself with whatever appears to hold humans together as a collective
association, its governing institutions have become highly intricate. This mod-
ern notion of the state has grown alongside the emergence of civil society, con-
ceived as a sphere of individual autonomy and energy. Although the relationship
between society and government is a factor which shapes the way the state is
conceived, the rise of civil society does not lead to the decline of government.
Since the workings of markets and individual action possess the power to destroy
as well as create, such operations stand in need of regulation by government. For
government to realize these responsibilities, an extensive administrative appar-
atus is needed: the modern state becomes an administrative state.
In the name of promoting security, liberty, and prosperity, modern governments
have greatly expanded the range of their activities. They now assume responsi-
bility not only for providing order and security but also for furthering economic
and social development, managing the economy, and providing for the welfare of
their citizens. This extension in role has resulted in government acquiring a large
and sophisticated administrative apparatus. With this growth in administrative
power, the efficacy of conventional constitutional checks is placed in question.
Under these conditions, the traditional Prussian adage that ‘freedom depends
much more on administration than on constitution’ is given a renewed force.¹ But
what impact does this extension of the administrative powers of government have
on constitutional arrangements? This chapter examines legal and institutional
responses to the establishment of administrative regimes of government and con-
siders their implications for conceptualization of contemporary public law.
I. The Emergence of Administrative Law

The growth of the administrative powers of government has been accompanied
by the emergence of a new legal categorization, that of administrative law. From
¹ BG Niebuhr (1815), cited in Leonard Krieger, The German Idea of Freedom (Chicago:
University of Chicago Press, 1957), 217.
436 The New Architecture of Public Law
the outset, administrative law has remained an ambiguous and controversial con-
cept. One reason is that its establishment in continental Europe—especially in
Prussia, Austria, and later in France—was pioneered by authoritarian regimes.²
These origins have given administrative law, understood in a continental sense,
a distinctive identity. The commonality of its features enables us to treat contin-
ental administrative law as a single system, albeit one with particular national
variants.
Two preliminary points concerning the characteristic features of this contin-
ental system of administrative law might be highlighted. The first is that during
the construction of the authoritarian state the judiciary became absorbed into
the general system of government. That is, notwithstanding their special role,
judges were treated essentially as servants of the state: the judiciary was per-
ceived to be performing dispute-settlement functions within a unitary official
system.³ Secondly, it was determined that within this unitary system the task
of enforcing regulations and ordinances relating to administrative action did
not lie within the competence of the ordinary courts.⁴ This decision reflected
the Cameralist position that the exercise of the police power is a non-juridical
type of regulation, one that sought to maintain disciplinary rather than legal
order.⁵ Over time, these administrative procedures did become standardized
and Cameralist principles came to be influenced by legal values. By this stage,
however, a distinct administrative jurisdiction had developed and eventually a
separate system of administrative law, running parallel with the regular civil
courts, was formed.
The emergence of this separate system of administrative law is thus tied to the
processes of modernization, rationalization, and centralization. Since the author-
ity of the judiciary had traditionally been associated with the (feudal) ordering of
estates, the policy of removing administrative questions from the jurisdiction of
the courts and placing them under the control of special administrative bodies
became a central plank of the modernizing movement of enlightened absolutism.
‘The victory of the king over the estates and of the administrator over the feu-
dal judiciary’, notes Friedrich, ‘also constitutes the victory of centralizing forces
over local powers’.⁶ This centralizing and modernizing movement, it must be
² This is not merely circumstantial. As Hume noted: ‘All absolute governments must very much
depend on the administration; and this is one of the great inconveniences attending that form of
government’. See David Hume, ‘That politics may be reduced to a science’ in his Political Essays
Knud Haakonssen (ed) (Cambridge: Cambridge University Press, 1994), 4–15, 5.
³ In Prussia, the influential figure was Samuel von Cocceji (1679–1755) who, under Frederick
William I and Frederick II, incorporated the courts into the centralized administrative system: see
Carl Joachim Friedrich, Constitutional Government and Politics, Nature and Development (New
York: Harper, 1937), 88–90.
⁴ See in particular the decree of 1748 of Frederick II maintaining that public law issues should
not be brought before the regular courts: Friedrich, ibid, 90.
⁵ See above ch 14, 422–429.
⁶ CJ Friedrich, ‘The Continental Tradition of Training Administrators in Law and
Jurisprudence’ (1939) Journal of Modern History 129–148, 142.
emphasized, was not placed in the service of arbitrariness. Once this victory had
been achieved, new legal methods of regularizing official action were devised.
These methods were set in place during the latter half of the eighteenth century
and once these reforms had been set in place ‘the force of law could be enlisted on
the side of the central administration and its claims’.⁷ The result was the creation
of a new type of law, a system of administrative law. Administrative law was a
product of governmental modernization.
Th is system of administrative law was strengthened by improving the pro-
fessional training of government officials. The fi rst stage of this process had
been realized by promoting training in the Cameralist principles of efficient
resource management. But once administrative procedure had been regular-
ized, it became evident that legal knowledge was an essential component of
competent administration.⁸ Here we find the origins of the lawyer-civil serv-
ant, a bureaucratic type that occupies a predominant position in the official
service of continental European regimes. The lawyer-administrator is the
product of enlightened absolutism, and in particular the policy of promoting
modernization through the formation of a centralized and rational admin-
istrative system. In this type of system, rulers express their will through law,
and lawyer-bureaucracies become the medium through which that will is
efficiently and impartially executed.⁹ Bureaucracy thus emerges as a key ele-
ment of rationalization and modernization in government. And eventually it
becomes a foundational element not only of a new architecture of government
but also of public law.
The growing importance of bureaucracy in modern government is a major
theme of Weber’s investigations.¹⁰ Weber argues that bureaucratization of gov-
ernment ‘is everywhere a late product of historical development’ and that ‘since
bureaucracy has a “rational” character, with rules, means-ends calculus, and
matter-of-factness predominating, its rise and expansion has everywhere had
“revolutionary” results’.¹¹ Weber identifies six key characteristics of modern
bureaucracy:
⁷ Ibid.
⁸ The reforming Prussian monarchs had been first to require official training but they had a dis-
taste for lawyers, seeing in them ‘troublesome and irritating formalists who inclined to split hairs
where common sense gave an obvious indication of what was substantive justice’ (Friedrich, ibid,
143). The first to require legal training were the Austrians: ‘Austria, in an effort to legalize admin-
istration, soon adopted the practice of written recording for all important work. These so-called
“protocols” gave a decided advantage to the legally trained official and soon led to the require-
ment of “legal” education for the higher officials. Since any man could enter a complaint against
a governmental act on the basis of its conflict with codified law, it is evident that knowledge of
these codes became a conditio sine qua non for effective administration. We consequently find new
courses being offered in the universities after 1774’ (Friedrich, ibid, 144).
⁹ It is in this sense that the Rechtsstaat emerged in post-1848 Germany ‘as an ambiguous
compromise between liberalism and monarchical authoritarianism’: see above ch 11, 319–320.
¹⁰ Max Weber, Economy and Society: An Outline of Interpretive Sociology Guenther Roth and
Claus Wittich (eds) (Berkeley: University of California Press, 1978), vol 2, ch 11.
¹¹ Ibid, 1002.
(i) Official tasks are ordered by rules (laws or administrative regulations),
allocated into functionally distinct spheres, and are undertaken on a regular
and continuous basis.
(ii) Offices are arranged hierarchically, through a clearly established system of
super- and sub-ordination in which lower offices are supervised by higher
offices.
(iii) Offices are based on a clear public-private distinction and discipline in work
is maintained through production of written documents and files.
(iv) Administration presupposes thorough training in a field of specialization.
(v) Administration requires the permanent, full-time working capacity of
officials.
(vi) Administration works in accordance with general, stable and comprehensive
rules which can be learned. Knowledge of these rules, which are both legal
and administrative, is a special technical expertise which officials possess.¹²
These characteristic features of bureaucracy can also be used to specify the
essential elements of a system of administrative law. Administrative law thus arises
because of the allocation of governmental tasks to a permanent staff (v), organ-
ized into functionally distinct spheres (i), and working in accordance with general,
stable, and comprehensive rules (vi). This system of administrative law evolves
through the medium of lower administrative tribunals being integrated under the
supervisory jurisdiction of a higher administrative court (ii), a movement which
relies on the skills of a specialized judiciary that possesses direct knowledge of the
administrative process (iv). This system of administrative law generally operates by
way of review of the documentary record (iii). As Weber notes: ‘Precision, speed,
unambiguity, knowledge of the files, continuity, discretion, unity, strict subordi-
nation, reduction of friction and of material and personal costs—these are raised
to the optimum point in the strictly bureaucratic administration’.¹³ Similarly,
these are the qualities that a system of administrative law must promote.
These German practices, developed in eighteenth century, were built upon in the
construction of the French system after the Revolution. Under the Ancien Regime
the lack of co-ordination between the executive and judicial branches, and espe-
cially the slow and costly nature of the latter, had caused serious friction.¹⁴ After the
Revolution, a new system was devised. Adopting Montesquieu’s theory that liberal
government rested on the separation of legislative, executive, and judicial powers,
the revolutionary leadership established a system under which the administration
was able, without restriction, to fulfil the tasks entrusted to it. This arrangement
prohibited any interference by the judiciary in the conduct of administration.¹⁵
¹² Ibid, 956–958. ¹³ Ibid, 973.

¹⁴ L Neville Brown and John S Bell, French Administrative Law (Oxford: Oxford University
Press, 4th edn, 1993), 22–23.
¹⁵ Law of 16–24 August 1790, Art 13: ‘Judicial functions are distinct and will always remain
separate from administrative functions. It shall be a criminal offence for the judges of the ordinary
courts to interfere in any manner whatsoever with the operation of the administration, nor shall
The administration of post-revolutionary France ‘was thought of as a separate

machine, independent of both legislature and the “ordinary” judiciary’.¹⁶ Except
for a complaint procedure, it left the citizen without an avenue of independent
review. This deficiency was resolved only with the gradual emergence during the
nineteenth century of the Conseil d’Etat as an independent administrative court.¹⁷
Once established, the administrative court system could be seen to possess dis-
tinctive advantages: its hierarchical structure offered a relatively accessible and
inexpensive means of administrative redress; its judiciary developed a technical
competence that could not be expected of the ordinary judiciary; its un-codified
character (unusual in civil law) meant that this administrative jurisdiction was able
to evolve incrementally, in accordance with experience; and its position within the
administration helped to place legal values more securely within the administrative
process and more effectively to shape the general character of the administration.¹⁸
Once set in place, this system of administrative law was adopted by many
European regimes. Enriched by his study of the methodology of the French sys-
tem of droit administratif, Otto Mayer in the 1890s produced the classic work on
German administrative law. Mayer’s work quickly acquired a status similar to
that achieved by Laband in constitutional law.¹⁹ It established the ‘modern legal-
administrative method’ of the German system.²⁰ Reforms in other European
regimes followed, together with scholarly reconstruction, so that by the latter-
half of the nineteenth century a relatively uniform system of administrative law
existed.²¹ This development saw lawyers placed in a central role in the adminis-
trative systems of modern government, though it might be noted that their train-
ing in public law, which incorporated studies in political science, economics, and
public finance, entailed a much broader understanding of the range of juristic
inquiry than that which existed in the common law tradition. The adoption of
this legal-administrative method in turn helped to shape the architectural form
of modern government.
they call administrators to account before them in respect of the exercise of their official functions’
(cited in Neville Brown and Bell, ibid, 43).
¹⁶ Ibid, 23. ¹⁷ Ibid, 42–47.
¹⁸ One illustration of the latter is the way in which the doctrine of proportionality has been
developed by the French administrative courts: see ibid, 218–220.
¹⁹ Otto Mayer, Theorie des französischen Verwaltungsrecht (Strassbourg: Trübner, 1886); Otto
Mayer, Deutsches Verwaltungsrecht (Munich: Duncker & Humblot, 3rd edn, 1924). For Mayer’s
achievement, see Michael Stolleis, Public Law in Germany, 1800–1914 (New York: Berghahn
Books, 2001), 392–394.
²⁰ Ernst Forsthoff, Lehrbuch des Verwaltungsrechts (Munich: Beck, 9th edn, 1966), 49: ‘Sie ist
das Werk Otto Mayers, der als der eigentliche Schöpfer und Klassiker der modernen deutschen verwal-
tungsrechtlichen Methode gelten darf ’ (‘ . . . It is the work of Otto Meyer, who counts as the sole cre-
ator and classic author of modern German administrative legal methods’).
²¹ For the Italian case, see Vittorio Emanuele Orlando, Principi di diritto amministrativo [1890]
(Florence: Barbèra, 1952). On the influence exercised by Orlando (who shared the positivist method of
Laband), see Sabino Cassese, Culture et politique du droit administratif (Paris: Dalloz, 2008), 23–30.
II. The English Quarrel with Administrative Law
The system of administrative law that emerged in continental Europe during the
eighteenth and nineteenth centuries was antithetical to English ways of govern-
ing. Every facet of the emerging system ran contrary to the common law tradition.
That judges form part of the official system of government rather than existing
as an independent body mediating between government and society; that law
is a set of rules to be taught and learned rather than a body of evolving practice,
knowledge of which is acquired through experience; that law is the will of the
legislature rather than the product of the artificial reason of the judiciary; that
‘law’ is a term to be applied to regulations and directives issued by and to official
bodies rather than being a common set of rules of conduct; that special official
agencies (administrative courts) rather than the general institution of judicature
could possess the ultimate authority to determine the meaning of administrative
rules and regulations that affect the rights of the subject—all of these facets of the
system of administrative law were offensive to the traditions of the common law.
This common law tradition derives in large part from the claim that the insti-
tutional outlines of English government can be traced to some remote past. This
claim gave rise to a peculiar trope: the myth of the ancient constitution. This
myth turns on the claim that there existed an ancient Anglo-Saxon constitu-
tion founded on principles of liberty and democracy and which is the originating
source of the fundamental laws.²² The myth, which was central to the English
rejection of administrative law, first assumed an importance during the seven-
teenth-century constitutional conflicts, when it was invoked primarily for the
purpose of asserting the privileges of Parliament and the common law courts
against the prerogative claims of the crown. But the myth also permeated the
writings of the grand nineteenth-century school of constitutional history; later
known as the ‘Whig interpretation of history’, this school promoted the claim
that the history of the English constitution is a story of the unfolding of liberty.²³
The ancient constitution, it was suggested, was erected on two platforms: a prac-
tice of local self-government, and the fact that Parliament, formed from the
representatives of these localities, is the central institution of government and
formed the pivot that was able to balance authority and liberty. In this frame of
thought, English constitutional history is the history of the struggle to ensure
that the ancient local liberties—the fundamental laws—are not usurped by the
²² JGA Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University
Press, 1957), esp ch 2; JW Gough, Fundamental Law in English Constitutional History (Oxford:
Clarendon Press, 1955).
²³ See JW Burrow, A Liberal Descent. Victorian Historians and the English Past (Cambridge:
Cambridge University Press, 1981); Herbert Butterfield, The Whig Interpretation of History
(London: Bell, 1931); Butterfield, The Englishman and His History (Cambridge: Cambridge
king’s prerogative claims to make law or levy taxation without first obtaining the
consent of the nation as assembled in Parliament.
The existence of these practices of local government and parliamentary
representation ensured that there has never emerged in England a hierarchical
and undifferentiated concept of administration. Local institutions evolved not as
creatures of the central authority but as representations of historic communities
within a structure of national laws to which both the crown and the localities are
equally bound. Central government possessed no inherent superior jurisdiction
over local institutions, and in this sense the English inheritance is a tradition
of local government rather than a system of local administration. This tradition
is also tied to the principles of parliamentary sovereignty and the rule of law.
The common law, as an undivided system of national laws, could not be altered
by the crown alone; the crown could act only with the consent of the people
expressed in Parliament. There being few significant prerogative powers in the
domestic sphere, the Crown-in-Parliament, as a supreme legislature, exercised
absolute authority over internal administration: the Act of Parliament became
the form through which was framed not only all new laws but all the ordinances
which regulated administrative activity. Administrative bodies therefore became
answerable not only to the central authority, but to the courts and to Parliament.
Since the relationships between the centre and local administrative bodies were
not worked out through a central–local hierarchy but through an intricate net-
work of relationships between local government, central government, Parliament,
and the courts, no formal system of administrative law could be established.
The constitutional aspects of this inheritance had been authoritatively laid
down by Dicey, who in his Law of the Constitution of 1885 devoted a section
(in later editions an entire chapter) to a comparison between British arrange-
ments known as ‘the rule of law’ and ‘a scheme of administrative law . . . known
to Frenchmen as droit administratif ’.²⁴ Dicey argued that the French expression
had no proper English equivalent since ‘the words “administrative law”, which
are its most natural rendering, are unknown to English judges and counsel’ and
the concept ‘rests on ideas foreign to the fundamental assumptions of our English
common law’.²⁵ He argued that modern droit administratif received its form from
Bonaparte, who ‘fused together what was strongest in the despotic traditions of
the monarchy [ie, the Ancien Régime] with what was strongest in the equally des-
potic creed of Jacobinism’; it had, he argued, developed along similar lines since.²⁶
At the centre of the French system lay the Conseil d’Etat whose function ‘in so
far as they acted judicially (for they fulfilled many duties that were not judicial)
was to determine questions of administrative law’.²⁷ This system, Dicey claimed,
removed the ordinary courts from considering matters of administrative law, led
²⁴ AV Dicey, Introduction to the Study of the Law of the Constitution (London, Macmillan, 8th
edn, 1915), ch 12 (quotation at 324–325). See also above ch 11, 315–317.
²⁵ Dicey, ibid, 326, 325. ²⁶ Ibid, 331–332. ²⁷ Ibid, 336.
to sterile jurisdictional disputes, protected government officials from legal chal-
lenge, and bore the hallmarks of the prerogative claims of the Tudors and Stuarts
that were defeated in the mid-seventeenth-century English revolution.
Notwithstanding its veneer of analytical positivism, Dicey’s argument about
the constitution rested on pre-modern conditions and assumptions. Until the
nineteenth century, internal administration had indeed been the preserve of local
institutions, which had been left free to deal with their administrative responsibil-
ities with few restraints on the manner of their exercise.²⁸ But with industrializa-
tion and urbanization, these arrangements were shown to be entirely inadequate:
new administrative powers and new administrative authorities were required to
exercise these increasingly important regulatory powers of police. Through the
private bill procedure, Parliament had initially been able to assume a jurisdic-
tion which in continental states had become the preserve of the central authority
operating within a system of administrative law.²⁹ But it soon became evident
that radical administrative reforms were needed and that these would require
active central supervision. The initiative moved from Parliament to government.
Under the prevailing influence of Benthamism, a plethora of schemes for
reform of the power of police was promoted, especially with respect to educa-
tion, poor law reforms, prisons, and urban infrastructure. The reforms tended to
follow a common administrative pattern of increased centralization, continuous
governmental supervision, and the subjection of public administration to mar-
ket-based disciplines.³⁰ Bentham’s projects thus envisaged the establishment of
extensive schemes of administrative regulation subject to overarching control by
central government.³¹ These reforms were leading to the growth of administra-
tive power and, by virtue of official checks and controls, to the emergence of an
informal structure of ‘administrative law’.
Some jurists openly acknowledged this fact and advocated the need to make
consequential constitutional adjustments.³² But Dicey vehemently rejected
²⁸ See WS Holdsworth, History of English Law (London: Methuen, 1938), vol 10, 160–162 for
an inventory of the powers and duties of the justices of the peace.
²⁹ See OC Williams, The Historical Development of Private Bill Procedure and Standing Orders in
the House of Commons (London, HMSO, 1948); Sheila Lambert, Bills and Acts: Legislative Procedure
in Eighteenth Century England (Cambridge: Cambridge University Press, 1971).
³⁰ See Nancy L Rosenblum, Bentham’s Theory of the Modern State (Cambridge, MA: Harvard
University Press, 1978), ch 6; David Roberts, ‘Jeremy Bentham and the Victorian Administrative
State’ (1959) 11 Victorian Studies 193–210.
³¹ See Elie Halévy, The Growth of Philosophic Radicalism M Morris (trans) (London: Faber &
Gwyer, 1928), 432: ‘The State, as conceived by Bentham, is a machine so well constructed that
every individual, taken individually, cannot for one instant escape from the control of all the indi-
viduals taken collectively’.
³² See, eg, FW Maitland, The Constitutional History of England [1887–1888] (Cambridge,
Cambridge University Press, 1908), 505–506: ‘Do not imagine that English law is exhausted by
those departments of it that you can study here [in the university]—the law of crimes, the law of
property, torts, and contracts, and that part of constitutional law which is concerned with king and
parliament. No, there are vast departments of law lying outside these boundaries; some of them
belong to constitutional law, others perhaps may be called administrative law; for the most part
the contention that the existence of these powers could change the character of
English law or alter the nature of the constitution. He defended the tenets of
classical liberalism that he believed to be firmly embedded within the British
constitution. And he defended these most vigorously against the emergence of
‘collectivism’, which he believed to form the ideological basis of governmental
growth and the originating source of the threat of administrative law.³³ For
Dicey, the rise of administrative law meant the decline of the constitution.³⁴
In his last edition of the Law of the Constitution in 1915, Dicey complained
that the rule of law had recently suffered a ‘marked decline’, arguing that this
was occurring because ‘the law of England is being “officialised” . . . by statutes
passed under the influence of socialistic ideas’.³⁵ This was due ‘to the whole
current of legislative opinion in favour of extending the sphere of the State’s
authority’.³⁶ Although Dicey overlooked the extent to which an administra-
tive jurisdiction had developed in Britain in the mid-nineteenth century and
had misunderstood the degree to which the Conseil d’Etat in France had dur-
ing the latter-half of the nineteenth century established its independence as an
administrative court, this message was bolstered by Dicey’s followers. During
the early decades of the twentieth century, Dicey’s disciples were the predomi-
nant legal voice, proclaiming that the growth of the administrative function was
leading rapidly to a ‘new despotism’, marked by ‘administrative lawlessness’ and
‘bureaucracy triumphant’.³⁷
Th is dominant (normativist) argument was challenged by a small group of
self-styled ‘modern’ public law scholars promoting a functionalist approach.³⁸
Influenced by political movements variously referred to as ‘new liberalism’,
they are statutory and of recent creation, the work of the last fifty years: but their importance is
very great. . . . Only do not neglect their existence in your general conception of what English law
is. If you do, you will frame a false and antiquated notion of our constitution. . . . The governmental
powers . . . have become of the greatest importance and to leave them out of the picture is to make
the picture a partial one-sided obsolete sketch’.
³³ AV Dicey, Lectures on the Relation between Law and Public Opinion in England during the
Nineteenth Century (London: Macmillan, 1905). It might be noted that Dicey too claimed to fol-
low Bentham: ‘Benthamism was . . . little else than the logical and systematic development of those
individual rights, and especially of that individual freedom which has always been dear to the com-
mon law of England. . . . Benthamism is heavily indebted to Coke, and utilitarianism has inherited
some of its most valuable ideas from Puritanism’ (ibid, 175).
³⁴ Cf Mayer, Deutsches Verwaltungsrecht, above n 18, vol 1, Foreword: ‘ “Verfassungsrecht vergeht,
Verwaltungsrecht besteht”; dies hat man anderwärts schon längst beobachtet’ (‘ “Constitutional law
dies, administrative law survives”; one has observed this elsewhere some time ago’).
³⁵ Dicey, above n 24, xxxviii, xliv.
³⁶ Ibid, xxxix.
³⁷ See Lord Hewart of Bury, The New Despotism (London: Benn, 1929); CK Allen, Bureaucracy
Triumphant (London: Oxford University Press, 1931).
³⁸ See Martin Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992),
esp chs 6, 7; Martin Loughlin, ‘The Functionalist Style in Public Law’ (2005) 55 University of
Toronto Law Journal 361–403.
progressivism, or social democracy,³⁹ these scholars opposed the classical lib-
eralism espoused by most constitutional lawyers. Arguing that ‘true’ freedom
required collective action, they promoted the virtues of administrative gov-
ernment organized through a comprehensive system of administrative law. In
this ambitious objective they were singularly unsuccessful,⁴⁰ which left them
either making constructive proposals for the reform of particular statutory
schemes, or engaging in critical assessment of the persistent failure of the com-
mon law judiciary to engage in judicial review in a manner conducive to good
administration.⁴¹
Only during the last decades of the twentieth century was more systematic
constructive work undertaken. Throughout the twentieth century, concern
had been expressed about the acquisition of legislative and judicial powers
by administrative bodies,⁴² and the solution proposed entailed reform of the
methods by which the administrative powers acquired by government could
be subjected to supervision by the common law courts.⁴³ Only after reform to
judicial review procedures,⁴⁴ and only after the judiciary had made significant
³⁹ See John A Hobson, The Crisis of Liberalism: New Issues of Democracy (London: PS King,
1909); James T Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European
and American Thought 1870–1920 (New York: Oxford University Press, 1986); Marc Stears,
Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and
Britain, 1909–1926 (Oxford: Oxford University Press, 2002).
⁴⁰ See, eg, William A Robson, Justice and Administrative Law (London: Stevens, 3rd edn, 1951),
ch 6; J Willis, The Parliamentary Powers of English Government Departments (Cambridge, MA:
Harvard University Press, 1933), 171–172; JDB Mitchell, ‘The causes and effects of the absence of a
system of public law in the United Kingdom’ (1965) PL 95–118.
⁴¹ See Loughlin, Public Law and Political Theory, above n 38, 165–181; 191–206. For an
American scholar’s observations, see Fritz Morstein Marx, ‘Comparative Administrative Law: The
Continental Alternative’ (1942) 91 University of Pennsylvania Law Review 118–136, 123: ‘At times,
the [English] courts have ventured forward with more verve than understanding, and the result
occasionally reminds one of the proverbial bull in the china shop. More frequently, however, they
have acted on the hypothesis that it is sounder to leave administrative judgment alone. There is
ground for suspicion that this hesitation is caused by the perfectly natural uneasiness which must
befall the courts when they are confronted with matters too elusive for any mind devoid of expert
knowledge’.
⁴² See MJ Taggart, ‘From “Parliamentary Powers” to Privatization: the chequered history of del-
egated legislation in the twentieth century’ (2005) 55 University of Toronto Law Journal 575–627.
⁴³ See, eg, Report of the Committee on Ministers’ Powers Cmd 4060 (London: HMSO, 1932),
which reported that the existing procedures of judicial control were ‘too expensive and in cer-
tain respects archaic, cumbrous and too inelastic’ (at 99); Alfred Denning, Freedom under the Law
(London: Stevens, 1949), 126: ‘No one can suppose that the executive will never be guilty of the
sins that are common to all of us. . . . But if and when wrongs are thereby suffered by any of us what
is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for pre-
venting the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of
coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the
winning of freedom in the new age. They must be replaced by up to date machinery. . . . Of all the
great tasks [for courts] that lie ahead this is the greatest. Properly exercised the new powers of the
executive lead to the welfare state; but abused they lead to a totalitarian state’.
⁴⁴ See Harry Woolf, Protection of the Public—A New Challenge (London: Stevens, 1990),
38–56. The procedural reform of the late-1970s establishing the application for judicial review was
followed in the 1980s by the transformation of the Divisional Court of the Queen’s Bench Division
progress in developing a more coherent set of public law principles,⁴⁵ could

the haphazard arrangements of administrative tribunals be streamlined into
an ordered system.⁴⁶ In a slow, incremental, and typically pragmatic way, the
administrative jurisdiction of governmental bodies was eventually brought
under the supervision of the High Court. Not until the twenty-first century
had the path enabling the establishment of a more rational system of adminis-
trative law been cleared.
III. Administrative Government and the Separation of Powers
The institutional adjustments that states made in response to government growth

have tended to vary according to their understanding of the doctrine of the sep-
aration of powers. The English response, for example, was shaped by the convic-
tion that once the executive acquires legislative and adjudicatory powers, a way
is opened that leads inexorably towards despotism. For the English, ‘adminis-
trative law’, in the French sense of a special regime of powers and appeals, is an
oxymoron. But the French initiative in constructing a system of administrative
law was driven precisely by their adherence to the doctrine of the separation of
powers. Since the prince was not bound by the laws and is autonomous with his
own sphere, French jurists argued, it was necessary to develop a special body of
law—administrative law, in contrast to civil law—to ensure that the essential
powers of governing were directed to public purposes and susceptible to check
and review. The concept of administrative law adopted thus depends on the gov-
erning regime’s grasp of the meaning of the separation of power.
These responses are testament to the power of ideas to shape practices. But they
also suggest that lawyers engaged in the practical tasks of state-building should
guard against becoming overly swayed by abstract concepts. This has been a recur-
ring theme of British political practice, where the assertion of any general principle
must invariably be qualified by a multiplicity of exceptions. The history of the
English Parliament is such, for example, that it cannot easily be allocated to the
role of a legislature; throughout most of its history it has been issuing admin-
istrative regulations and instructions and playing a significant role in governing
into the Administrative Court, with specially nominated High Court judges forming a specialized
court to hear all public law claims and generally to assert supervisory jurisdiction over all aspects
of administration.
⁴⁵ See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Lord
Diplock signalled the success of the procedural reforms and modernization of the principles of
judicial review in R v IRC, ex p National Federation of Self Employed [1982] AC 617, 641: ‘the pro-
gress towards a comprehensive system of administrative law . . . I regard as having been the greatest
achievement of the English courts in my judicial lifetime’.
⁴⁶ Tribunals, Courts and Enforcement Act 2007.
the country.⁴⁷ A similar point can be made about the relationship between admin-
istrative and judicial functions. ‘It is curious’, notes Maitland, ‘that some political
theorists should have seen their favourite ideal, a complete separation of adminis-
tration from judicature, realised in England; in England of all places in the world,
where the two have for ages been inextricably blended’.⁴⁸ The mistake ‘comes of
looking just at the surface and the showy parts of the constitution’.⁴⁹
This type of criticism applies with renewed effect in the light of the emer-
gence during the twentieth century of extensive administrative government.
Government today is ubiquitous and it functions through an administrative
modality. The precise forms may, and do, change: the size of the public sector var-
ies over time (as particular activities become public functions or as such functions
are privatized), and the modes of regulation may alter (as, for example, command-
and-control methods are replaced by contractual arrangements). What does not
change is the fact that ‘increasingly the real work in all organizations is done by
salaried employees and by functionaries of all kinds’. ‘Everything else’, Weber
argues, ‘has become window-dressing’.⁵⁰ For Weber, the only really inescapable
power is that of bureaucracy.
Weber’s thesis challenges many of the assumptions on which modern consti-
tutionalism is founded, not least because constitutional concepts tend to rest on
eighteenth-century assumptions of limited government. ‘Virtually all the terms
and concepts we employ in political and legal theory’, notes Rubin, ‘are heuris-
tics, or metaphors, rather than observable features of the world’.⁵¹ Statutes ‘are
real enough, but law is a metaphor; elections are real but democracy is a mental
image; the president, Congress, and the federal judiciary are certainly observable
⁴⁷ See, eg, Maitland, above n 32, 382: ‘For a long time past political theorists have insisted
on the distinction between legislation and the other functions of government, and of course the
distinction is important though it is not always easy to draw the line with perfect accuracy. But it
seems very necessary to notice that the power of a statute is by no means confined within what a
jurist or a political philosopher would consider the domain of legislation. A vast number of statutes
he would class rather as privilegia than as leges; the statute lays down no general rule, but deals only
with a particular case’. Maitland notes that only after 1832 does Parliament ‘begin to legislate with
remarkable vigour . . . but about the same time it gives up the attempt to govern the country, to say
what commons shall be enclosed, what roads shall be widened, what boroughs shall have paid con-
stables and so forth’ (at 384). The modern practice is reflected in Sir Courtenay Ilbert’s comment
that nine-tenths of the statute book continued to be concerned with administration rather than
legal principles: Sir Courtenay Ilbert, Legislative Methods and Forms (Oxford: Oxford University
Press, 1901), 6. See also CK Allen, Law in the Making (Oxford: Oxford University Press, 6th edn,
1958), 296: ‘The great bulk of legislation is concerned with public law. It is for the most part of a
social or administrative character, defining the reciprocal duties of State and individuals, rather
than the duties of individuals inter se’.
⁴⁸ FW Maitland, ‘The Shallows and Silences of Real Life’ in his Collected Papers HAL Fisher
(ed) (Cambridge: Cambridge University Press, 1911), vol 1, 467–479, 478.
⁴⁹ Ibid. See also Robson, above n 40, ch 1.
⁵⁰ Weber, above n 10, vol 2, 1400.
⁵¹ Edward L Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton,
NJ: Princeton University Press, 2005), 15.
entities, but the three branches of government exist only in our minds’.⁵² The
problem, Rubin suggests, is that we have been thinking and arguing within these
categories for so long that they have become reified: we treat them as natural
entities and, rather than observing what is going on, we seek actively to shape the
data to fit our inherited categories.
This problem has become particularly acute as a consequence of the growth in
scale and complexity of contemporary government. The defence, security, health,
education, social care, energy, transport, and income support services on which
we rely for the purpose of sustaining social ordering are all provided through
administrative arrangements. The government’s reach extends further still: the
quality standards of the air we breathe, the water we drink, the food we eat, the
goods we consume, the professional services we use are all regulated by adminis-
trative agencies. In its formative stage, this growth in the government’s reach was
accommodated to constitutional requirements mainly by creating large central
government departments headed by ministers. These bureaucracies, established
to oversee the delivery of public services and monitor the performance of a var-
iety of regulatory bodies, were made accountable to parliamentary institutions,
and ultimately to citizens, by virtue of the fact that they are headed by ministers
who, being drawn from elected representatives, maintain political responsibility
for their operations. But these administrative arrangements also displayed mani-
fest deficiencies, which included restrictions inherent in the bureaucratic mode
of action (delay, addiction to formalities, lack of responsiveness, etc), the limits of
ministers’ ability to impose their will, and the remoteness of the mechanisms
of parliamentary accountability. During the last decades of the twentieth cen-
tury, against the background of fiscal restraint and rising expectations, such defi-
ciencies generated radical critique, which in turn produced basic reforms to the
administrative mode of operation.⁵³
The reforms that have been implemented—which include privatization,
deregulation, promotion of competition for public service provision, and a more
extensive use of regulatory techniques—have had a major impact on the institu-
tional arrangements of most western governments. The public/private bound-
ary has not only shifted (through privatization schemes and distinction between
policy and service delivery responsibilities), but has also become more blurred
(through various public/private partnership schemes). At the same time, there has
been a hollowing-out of ‘core executive tasks’: by breaking down big departments
⁵² Ibid.
⁵³ See, eg, Mancur Olson, The Rise and Decline of Nations. Economic Growth, Stagfl ation and
Social Rigidities (New Haven, CT: Yale University Press, 1982); Claus Offe, Contradictions of the
Welfare State (London: Hutchinson, 1984), ch 2; Christopher D Foster and Francis Plowden, The
State Under Stress: Can the Hollow State be Good Government? (Buckingham: Open University
Press, 1996); Christopher Hood et al, Regulation Inside Government: Waste-Watchers, Quality
Police, and Sleaze-Busters (Oxford: Oxford University Press, 1999); Michael Moran, The British
Regulatory State: High Modernism and Hyper-Innovation (Oxford: Oxford University Press, 2003);
Ezra Suleiman, Dismantling Democratic States (Princeton, NJ: Princeton University Press, 2003).
and creating executive agencies operating at arm’s-length from ministers, such
reforms have produced a considerable amount of institutional fragmentation.
These radical shifts have led to the emergence of what has been called a ‘new pub-
lic management’ ethos.⁵⁴
These recent administrative reforms have raised questions about government
effectiveness, but they also pose issues for public law. They raise doubts about
whether we can continue to work within the enlightenment scheme of a separa-
tion of powers. But they go further. The new phase of governing which is open-
ing up take us beyond questions about the architecture of government; they also
force us to ask whether a new architecture of public law is being erected.
IV. The Rise of the Ephorate
One consequence of institutional differentiation in government is that many

governmental tasks are now being undertaken by agencies that operate at a con-
siderable distance from the main institutions of democratic legitimation. The
traditional hierarchical arrangement, in which central departments headed by
ministers operate at the apex of the system, is being replaced by more differenti-
ated arrangements comprising elaborate policy and service networks in which a
great number of public bodies operate at some remove from electorally authorized
sources of authority. Decisions taken by independent central banks, the energy
sector regulators, the various inspectorates (schools, health and safety, pollution,
pension, police, and prisons), and a variety of miscellaneous bodies (such as, in
the United Kingdom, the National Institute for Health and Clinical Excellence
(NICE) or the Information Commissioner) often have greater impact on public
policy formation than decisions of ministers and other elected politicians.
But the critical issue is not simply that of distance; the essential point is that
the work of many of these public bodies cannot easily be explained by reference
to the principal-agency distinction. These bodies—which political scientists have
called non-majoritarian institutions or, more simply, unelected bodies⁵⁵—owe
their authority and legitimacy to sources other than delegation of public power
from the legislature. This point, together with a growing recognition that these
bodies now form a new branch of government, presents significant conceptual
challenges. The branch that is coming into existence forms what might be called
a new ephorate.⁵⁶
⁵⁴ Christopher Pollitt and Geert Bouckaert, Public Management Reform: A Comparative Analysis
(Oxford: Oxford University Press, 2nd edn, 2004).
⁵⁵ Mark Thatcher and Alec Stone Sweet, ‘Theory and Practice of Non-Majoritarian Institutions’
(2002) 25 West European Politics 1–22; Frank Vibert, The Rise of the Unelected: Democracy and the
New Separation of Powers (Cambridge: Cambridge University Press, 2007).
⁵⁶ See Johannes Althusius, Politica: Politics Methodically Set Forth and Illustrated with Sacred
and Profane Examples [1603] Frederick S Carney (trans and ed) (Indianapolis: Liberty Fund, 1995),
In the United Kingdom this ephorate consists of around 650 public bod-
ies; some carry out executive functions, though most have regulatory or advi-
sory responsibilities. Their work can be categorized according to five main
functions:⁵⁷
(i) Service providers. Examples include the Bank of England’s responsibility
for monetary policy and the BBC, established as an independent public cor-
poration with responsibility for broadcasting services.
(ii) Risk assessors. These constitute a range of specialist bodies that gather scien-
tific and technical evidence and evaluate probabilities which feed into public
policy decision-making with respect to a broad range of subjects including
food safety, medicines, sport, nuclear waste, environmental pollution, and
health and safety at work.
(iii) Boundary watchers. These agencies police the boundaries between public
and private to ensure that proper regard is paid to the public interest. One
prominent type are the utility regulators that ensure that monopolistic posi-
tions are not exploited. Other types include those that ensure that confi-
dentiality and privacy is maintained with respect to the enormous amounts
of personal information that agencies acquire when undertaking public
functions.
(iv) Auditors. Auditors and inspectors have traditionally ensured that pub-
lic bodies lawfully and efficiently spend money allocated for designated
public purposes. In the new arrangements, this function has considerably
expanded, largely through their acquisition of a primary role in monitoring
general performance against their public objectives.
(v) Adjudicators. These bodies—tribunals, appeals bodies, ombudsmen, review
agencies—exist to provide an administrative method of effective dispute-
resolution by offering alternatives to traditional methods of legal or political
redress.
During the late-eighteenth century, Fichte had argued that in order to check
the state’s undivided sovereign power it was essential that the people appoint an
ephorate. Fichte conceived the ephorate as a group of the wise and the learned
which, while overseeing government, must remain independent; they ‘must
not have any connections, relationships, friendships or the like with those who
administer executive power’.⁵⁸ In Fichte’s image, the ephors exist to monitor and
oversee the exercise of public power, and specifically to ensure that the governing
institutions of the state remain geared towards the realization of right and law.
They are not designed as a higher authority than the executive; the executive is
ch 18. See above ch 3, 95; JG Fichte, Foundations of Natural Rights According to the Principles of the
Wissenschaftslehre [1796] Michael Baur (trans) Frederick Neuhouser (ed) (Cambridge: Cambridge
University Press, 2000), 141–144, 151–62. See above ch 5, 145.
⁵⁷ See Vibert, above n 55, 20–30. ⁵⁸ Fichte, above n 56, 158–159.
not directly answerable to them, since it ‘is accountable to no one other than the
assembled populace’.⁵⁹ But although the ephors ‘cannot sit in judgment of those
who hold public power . . . they must . . . constantly observe how state business is
conducted’ and they ‘have the right to make inquiries wherever they can’.⁶⁰ For
Fichte, their authority lay in their ability not to overturn particular decisions but
to dissolve the entire government on the grounds that it is acting contrary to the
foundational principles of right.
The unelected bodies that are now emerging to constitute what might be called
the new ephorate may be of the same genus but they perform slightly different
role. Although the new ephorate does not generally exercise governmental power
in a direct sense, its actions can have a major impact on policy decision-making.
Its decisions often circumscribe the autonomy of elected authorities, making
the influence of politicians over public policy processes more peripheral. In this
respect, it can be portrayed as constituting a danger to democracy or as express-
ing the emergence of what Fichte called ‘aristo-democracy’.⁶¹ But the phenom-
enon is more complicated.
The rise of the ephorate expresses a new phase in the development of gov-
ernment. Over the last 150 or so years, organized politics has tended to revolve
around the question of fair distribution of goods between social classes—in
particular, between capital and labour. But recently such questions of distribu-
tion have come to be addressed in a variety of registers: increasingly these polit-
ical issues are addressed in the language of fairness, and especially fairness with
respect to the allocation of risk or the allocation of rights.⁶² One consequence of
this shift has been to alter the balance between traditional institutions of demo-
cratic expression and the power of the ephorate: questions of fair distribution of
risk now directly engage the concerns of agencies like the Food Standards Agency
or the Environment Agency, just as the Equality and Human Rights Commission
has the potential to play a pivotal role in deliberations over rights.
The ephorate thus presents itself as a new branch of government comprising
office-holders who possess the type of expertise and specialized knowledge that
has become the basis of effective governmental decision-making. In the new
phase of governing that is opening up, the work of the ephorate might be seen as
constraining and structuring political decision-making. But it does not necessar-
ily limit the expression of democracy. Indeed, some have argued that it may even
possess the potential to strengthen it. What the ephorate evidently does, however,
is to impose a strict discipline over the processes of policy-making and over the
democratic process itself.
The role of the ephorate is most clearly revealed once the activity of govern-
ing is conceived as an exercise in practical problem-solving. Once governing is
⁵⁹ Fichte, ibid, 151. ⁶⁰ Ibid. ⁶¹ Ibid, 143.

⁶² Ulrich Beck, The Risk Society: Towards a New Modernity Mark Ritter (trans) (London: Sage,
1992); Colin Crouch, Coping with Post-Democracy (Cambridge: Polity Press, 2004).
treated as an exercise of solving collective action problems through processes that

require the bringing of reason and evidence to bear on the issue, and once polit-
ics is viewed as the art of reasonable accommodation of difference, then its role
is presented in a clearer light. Public decision-making can be assumed to involve
two basic elements: the bringing of knowledge and evidence to bear on the issue
and, in the light of that evidence, the making of a value judgment. The primary
function of the ephorate is to perform the central role in the first stage of this
process. And it is the independent and unelected nature of these agencies that
constitute a distinct advantage in the performance of this function, since these
features help to ensure that they are able to bring objective knowledge to bear on
the policy question.
Vibert has even argued that this new branch of government ‘strengthens dem-
ocracy because it provides a safer environment for people to benefit from expertise
and the latest state of knowledge, to gather information that is reliable and rele-
vant to themselves, to trust the information and to draw their own conclusions for
their own actions’.⁶³ The rise of the ephorate ‘helps citizens distinguish between
the different components of public policy and the different responsibilities of dif-
ferent contributors to public policy’ and having such better-informed citizens
‘makes it more difficult for elected politicians to play fast and loose with the facts
or to claim privileged access to knowledge’.⁶⁴ Its rise is part of a general process
of continuing institutional differentiation. This leads to a more formalized dis-
tinction being drawn between the information-gathering and policy-judgment
aspects of public decision-making, with these agencies playing the roles of gen-
erating information, analyzing evidence, and, through redress mechanisms, also
providing processes for subjecting policy decisions to review against canons of
rationality and proportionality.
The rise of the ephorate provides the clearest indication that a new phase in
governing is opening up. This is a complex process because it presents new chal-
lenges of discipline and judgment. Although these developments are open to the
criticism that they entail a narrowing of political decision-making by channel-
ling the exercise of political judgment into some technocratic problem-solving
exercise, they simultaneously possess the benefit of helping to clarify the respon-
sibility of representative institutions to articulate the values and principles that
determine policy decisions. The ephorate is valued because, by forming their own
epistemic communities that cut across the public/private boundary and by hav-
ing their distinct specialized tasks, they are well-placed to be able to bring the
best information and evidence to bear on an issue. Further, being independent
and expert institutions, these agencies might elicit greater trust in acting as the
conduit for disseminating robust knowledge. In this role, they can assist with
questions of legislative design as well as helping executives ensure that adopted
regulatory standards are based on the best available evidence.
⁶³ Vibert, above n 55, 3. ⁶⁴ Ibid.

On the other hand, this development is symptomatic of the extension of the
disciplinary mechanisms of police to the central questions of government: fiscal
rules devised in the regulatory network discipline ministers, monetary policies
laid down by central banks constrain governments, audit regulations structure
the programmes of public bodies, and performance targets established through
these arrangements structure the ways in which they undertake their responsi-
bilities. The ephorate clarifies political judgment through the imposition of strict
disciplines over decision-making processes. But in the course of so doing, the
nature of political judgment is altered. Effective political decision-making cer-
tainly needs a steady throughput of new information, but in this sphere the way
that information is assembled—as well as what counts as new information—
must constantly be questioned. Political decision-making tales places ‘in an arena
in which the standards for evaluating what is “success”, what is a good idea, and
what is a desirable outcome, are themselves always changing and always in prin-
ciple up for renegotiation’.⁶⁵ The type of discipline being imposed also carries the
danger of corroding the nature of political decision-making itself.
V. The New Separation of Powers
The rise of the ephorate exemplifies one of the main themes of public law devel-
opment: that authority is enhanced by the imposition of constraints. This theme
can be traced back to Bodin’s classic analysis. ‘The best kind of Commonwealth’,
Bodin argued, ‘is that, wherein the sovereign holds what concerns his majesty, the
Senate maintains the authority thereof, the magistrates execute their power, and
justice has her ordinary course’. But ‘if the prince or the people shall take upon
themselves the authority of the Senate, or the commands, offices, or jurisdictions
of the magistrates; it is much to be feared, least that they . . . shall at length be
spoiled of their own sovereign majesty also’.⁶⁶ Bodin’s thesis is that a well-ordered
state is one in which the institutions of government keep to their essential tasks
and do not invade the sphere of competence of the others. As government in
the modern world has increased in scale and administrative complexity, Bodin’s
principle—that power is enhanced through an evolving institutional differentia-
tion—has continued to do its work.
Although Bodin’s principle originally operated to establish an institutional
framework that bolstered monarchical rule, its importance has been transformed
with the rise of democracy. Today it is most commonly expressed in constitu-
tional thought as the doctrine of the separation of powers. This doctrine claims
⁶⁵ Raymond Guess, ‘What is political judgement?’ in Richard Bourke and Raymond Geuss
(eds), Political Judgement: Essays for John Dunn (Cambridge: Cambridge University Press, 2009),
29–46, 42.
⁶⁶ Jean Bodin, The Six Bookes of a Commonweale Richard Knolles (trans) [1606] Kenneth
Douglas McRae (ed) (Cambridge, MA: Harvard University Press, 1962), 518.
that governmental authority can be reconciled with individual liberty by the

method of allocating the three main functions of government—rule-making,
rule-execution, and rule-adjudication—to different institutions which are then
able to check the actions of the others. As has been noted, however, the growth of
administrative power threatens not only to unbalance the workings of this doc-
trine but also to render it anachronistic. The various controversies over the nature
and scope of administrative law express the range of possibilities of finding jur-
idical solutions to these threats. But how does the growth of the ephorate affect
these controversies?
On one interpretation the rise of the ephorate exacerbates the threats posed by
the growth of administrative power. The ephorate, so the argument goes, marks
the entrenchment of the power of unelected elites to influence government
while insulating itself from the processes of democratic accountability. But this
analysis has been contested: it is claimed that, properly understood, the ephorate
not only represents an emerging fourth branch of government, but also oper-
ates in accordance with Bodin’s principle. This new branch of government not
only bolsters a culture of blame-avoidance amongst contemporary politicians;
it also strengthens the government’s capacity to acquire the types of specialized
knowledge that today are essential preconditions of effective government. Far
from undermining it, the ephorate actually strengthens democracy, and it does
so by establishing an institutional framework through which the distinction
between professional judgments founded on specialized knowledge and polit-
ical judgments based on values and principles can be more clearly demarcated.
Understood in this light, the ephorate—far from corroding the separation of
powers—operate to clarify the boundaries between the core tasks of the pri-
mary institutions of government.
This thesis is most explicitly presented by Vibert, who claims that the ephor-
ate should be seen to be a democracy-reinforcing institution. Vibert’s argument
rests on the claim that representative democracy is itself a highly elitist concep-
tion of democracy.⁶⁷ He suggests that the rise of the ephorate ‘overturns one of
the key assumptions of representative democracy, that people are better off dele-
gating judgements and decisions to their elected representatives on the grounds
that elected representatives are better informed and have more knowledge at their
command’.⁶⁸ One consequence of this ‘new separation of powers’ is that elected
representatives are unable to claim ‘privileged access to information’. Responding
to the fact that citizens no longer trust the information that governments provide,
⁶⁷ On which see Bernard Manin, The Principles of Representative Government (Cambridge:

Cambridge University Press, 1997), arguing that ‘what today we call representative democracy has
its origins in a system of institutions (established in the wake of the English, American, and French
revolutions) that was in no way initially perceived as a form of democracy or of government by the
people’ (at 1).
⁶⁸ Vibert, above n 55, 13.
this new separation ‘makes it possible for people to rely on sources of information
untainted by machinery of government’.⁶⁹
The rise of the ephorate is thus linked to the decline of the deferential electorate.
It is claimed that provided this new branch confines its role to that of gathering
and disseminating information and analysing evidence, it can play an important
role in reinforcing democratic government. For the ephorate to realize this poten-
tial, however, it must claim an original, rather than a delegated, authority. Most
accounts seek to explain the ephorate’s constitutional position as being somehow
derived from the authority of representative institutions. But such accounts are
‘implausible in practice and mistaken in theory’.⁷⁰ The ephorate acquires its legit-
imacy from its own modus operandi. Just as the judiciary acquires its legitimacy
from an independence derived from its own powerlessness,⁷¹ so too does the eph-
orate. Just as the judiciary’s authority derives not from delegation from the people
but from the integrity of its own procedures, so too must that of the ephorate.
The ephorate’s authority must be acquired by virtue of the role it performs in
maintaining a well-ordered commonwealth. It does this primarily by generating
information in a form that promotes the responsiveness of the other branches
of government. It feeds scientifically acquired evidence into governmental
processes, thereby opening up new avenues of accountability for governmental
decision-making. In this respect, it forms a distinct branch of government that
devises its own procedures for determining facts—procedures that may be differ-
ent from parliamentary procedures, bureaucratic methods, or judicial processes.
The authority of the ephorate rests on its ability to instil co-ordination and dis-
cipline into the processes of contemporary government. The rise of the ephorate
signals the need to supplement a system of administrative law with a new type
of institutional ordering which is more explicitly driven by a police (or discipli-
nary) logic, as distinct from a juridical logic. The ephorate thus presents itself as
a fourth branch of government, and it stands in a similar relation to the power of
police as does the judicature in relation to modern constitutions.
Some scholars have promoted a more radical analysis and claimed that
recent changes to government have been so profound as to render the entire
modern edifice of constitutionalism obsolete. Pioneering this type of argu-
ment, Rubin argues that we need to ‘bracket the metaphor that government is
⁶⁹ Vibert, ibid. ⁷⁰ Ibid, 15.

⁷¹ See James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 87 (Hamilton), 437: ‘The Executive not only dis-
penses the honours, but holds the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction
either of the strength or of the wealth of the society; and can take no active resolution whatever. It
may truly be said to have neither force nor will, but merely judgment; and must ultimately depend
upon the aid of the executive arm even for the efficacy of its judgments’. Hamilton here follows
Montesquieu, The Spirit of the Laws [1748] Anne M Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (trans and eds) (Cambridge: Cambridge University Press, 1989), 160: ‘Of the three
powers of which we have spoken, that of judging is in some fashion, null’.
divided into three distinct branches’ and replace it with an alternative image
of government as a network.⁷² Deploying this image of the network—a set of
interconnections between particular nodes that serve to transmit energy or
information—Rubin jettisons modern constitutional concepts on the ground
that they now act as a barrier to understanding. Network analysis, he main-
tains, enables us more directly to confront the institutional challenges of con-
temporary government.
Rubin argues that the three-branch metaphor underpinning the doctrine of the
separation of powers is based on an out-dated model of limited government and
provides a poor conceptual framework for understanding contemporary proc-
esses. The growth of the administrative apparatus, he claims, has outstripped the
ability of the tripartite scheme of legislature, executive, and judiciary to capture
the complex dynamics of contemporary government. The problem today is that
government ‘will become inefficient or oppressive, that its massive, stable struc-
ture will become too self-contained to devote its efforts to the people’s needs, and
that it will either ignore the people or oppress them’.⁷³ It is because of these threats
that ‘we have developed administrative agencies to manage our social processes
and we have assigned elected policy makers and doctrinally oriented judges to
monitor those agencies’.⁷⁴ But thinking about government in the ‘conceptually
coagulated terms’ of the tripartite doctrine does not assist in the task. Rather,
the chief executive, the legislature and the judiciary are now best viewed as being
engaged in a common enterprise: the control of the administrative apparatus. The
network metaphor, he claims, ‘is much more likely to generate a microanalysis of
our government that enables us to accept its existence, comprehend its complex
operations, and generate practical ideas for its improvement’.⁷⁵
This radical analysis takes us beyond the consideration of the separation
of powers doctrine and the need to make adjustments in the light of contem-
porary developments: it suggests that it is necessary to reconsider the essential
character of public law today. Rubin is aware of the scale of this challenge. He
recognizes that with the shift ‘from a sacerdotal to an instrumental conception
of government, highlighted by the network model, the moral locus shifts from
past to future’.⁷⁶ In a passage that takes us back to the transition paradoxes of
modernity,⁷⁷ he notes that politics ‘no longer appears as the elaboration of some
initial premise, divine spark, or pre-political agreement’; it must now be seen ‘as
an ongoing process that generates new meanings and commitments’.⁷⁸ Politics
‘is no longer a product of our essential and unchanging human nature, but an
adventure in self-development and political evolution’.⁷⁹ Government must now
⁷² Rubin, above n 51, 48. ⁷³ Ibid, 73. ⁷⁴ Ibid. ⁷⁵ Ibid.

⁷⁶ Ibid, 188. ⁷⁷ See above ch 1, 46–49 and ch 2, 83–88.
⁷⁸ Rubin, above n 51, 188.
⁷⁹ Ibid. Cf Marcel Gauchet, The Disenchantment of the World: A Political History of Religion
Oscar Burge (trans) (Princeton, NJ: Princeton University Press, 1997), 184–185: ‘The collapse of
ideologies means the simultaneous collapse of the vestigial form of the religious—the last possible
be recognized as ‘an instrumentality by which we not only implement our cur-
rent values, but transform ourselves by virtue of the way those values become
manifest’.⁸⁰ To address Rubin’s argument properly, the functionalist claims made
of modern public law must be reconsidered.
VI. The Transformation of Public Law
The network model marks an advance in understanding, argues Rubin, primar-

ily because it enables us to avoid having to analyse institutions of government
‘through the dusty and distorting lens of delegation’.⁸¹ Statutes should be con-
ceived as ‘feed forward signals issued from the legislature to other governmen-
tal units’ and though they occasionally take the form of commands, they often
constitute other, more general and vague performatives.⁸² Legislation therefore
constitutes ‘a complex signal whose design depends on the particular goals that
the legislator is attempting to achieve, and upon a wide range of empirical infor-
mation about the signal’s recipient’.⁸³ The judiciary should similarly be removed
from its pedestal. Independence ‘is a political resource, to be deployed when it
can be specifically justified by normative or practical concerns, not an inherent
feature of any particular governmental unit’.⁸⁴ Courts perform a variety of tasks,
including policy-making,⁸⁵ and the notion that they are ‘the primary interpret-
ers of law is misleading’ since ‘administrative agencies are generally the primary
interpreters of statutes in the modern state, and most of these interpretations are
never reviewed by the judiciary’.⁸⁶
Th is network model expresses a relational concept of power,⁸⁷ and it rejects
the clear distinction between law and politics often made by jurists. By bring-
ing the structure of government into alignment with its operations, the net-
work model is able to draw the legal and political systems into a unified frame.
reconstruction of a lay social order’s image in terms of an external order . . . In other words, the secu-
larization of history is completed as the future becomes unrepresentable. The faceless and nameless
future, unconstrained and unaffected by occult determinism, is the pure future, removed from the
theological cocoon which concealed it for two centuries. From now on, no more diviners, media-
tors, and sacrificers. For herein lies the future’s main paradox: the more the order of the invisible
comes to light, the more secular it becomes; the more predictable it becomes, the less inevitable it
is; the more accountable it makes us, the more it teaches us that we create it. . . . The more we accept
ourselves as authors of history, the only remaining enigma is we ourselves’.
⁸⁰ Rubin, above n 51. ⁸¹ Ibid, 61. ⁸² Ibid. ⁸³ Ibid, 62–63.
⁸⁴ Ibid, 65.
⁸⁵ See, eg, Abram Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard
Law Review 1281–1316; Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern
State: How the Courts Reformed America’s Prisons (Cambridge: Cambridge University Press, 1998).
⁸⁶ Rubin, above n 51, 64. Similarly, the main bulk of adjudications is undertaken by administra-
tive agencies rather than the ordinary judiciary: see Jerry Mashaw, Bureaucratic Justice: Managing
Social Security Disability Claims (New Haven, CT: Yale University Press, 1983).
⁸⁷ Rubin, above n 51, 76–84.
Building on the legacy of legal realism, the network model is task-orientated

and offers an image of law as a set of techniques—signalled through statutes,
regulations, and enforcement policies—which are designed to realize certain
practical objectives. Advocates of the network model argue that ‘the only cat-
egory of governmental action that can possibly be distinguished from polit-
ics is adjudicatory decision-making, not law in general’; consequently, ‘any
concept of law that relies on law’s separate identity from politics . . . must be
understood as a theory of adjudication, not of legislation or administrative
implementation’.⁸⁸ Th is image of law as a practical tool of regulation has exer-
cised considerable influence over sociologically orientated public lawyers, many
of whom now finesse the distinction between constitutional and administra-
tive law and claim that regulation—and regulatory law—constitutes a discrete
disciplinary field.⁸⁹
Notwithstanding recent academic interest in this regulatory conception of
public law, the jurist who most clearly articulated the nature of the transforma-
tive shift effected by such a move remains Léon Duguit.⁹⁰ Duguit acknowledged
that ‘the idea still dominant in public law is that the real guarantee is to be found
in the electoral and representative system’. But there are still ‘strange illusions
abroad as to the benefits of this system and the guarantees it can afford’.⁹¹ A
major strand of his thesis concerning the eclipse of sovereignty is that ‘we cannot
to-day be satisfied with the over simple notion of a sovereignty which expresses
itself in an electoral majority’, not least because ‘majority rule is no longer the
fundamental principle of modern democracy’.⁹² Duguit’s argument about the
way in which modern public law has been transformed as a result of the emer-
gence of an objective law constructed on the principle of public service exposes
the juristic underpinnings of Rubin’s network model.
For Duguit, public law (droit politique) is not expressed in command (the sub-
jective will of the sovereign); rather, it is based on an objective law (that which
‘serves the public need and secures the co-ordination of the modern corporate
life’).⁹³ This claim has specific implications for the way we conceptualize legal
instruments. Constitutional statutes are fundamental not because of their source
but because ‘their object is to give the state the best means of serving social
needs’.⁹⁴ This basic functional principle is the key to understanding the force of
legal instruments in general.
In a system founded on the will of the sovereign, statutes are made only by
the institution that expresses that sovereign will. But in the administrative state
⁸⁸ Ibid.
⁸⁹ See, eg, Julia Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self
Regulation in a “Post-Regulatory World” ’ (2001) 54 Current Legal Problems 103–147; Julia Black,
‘Proceduralising Regulation’ (2000) 20 OJLS 597–614 (Pt I); (2001) 21 OJLS 33–59 (Pt II).
⁹⁰ See above ch 13, 402–406.
⁹¹ Léon Duguit, Law in the Modern State Frida and Harold Laski (trans) (London: Allen &
Unwin, 1921), 55.
⁹² Ibid, 34, 35. ⁹³ Ibid, 118. ⁹⁴ Ibid, 76.
where alongside legislation properly so-called ‘we have a legislation which is really
executive in character and yet which has for private citizens, administrators, and
the courts, the same compulsion as formal statutes’,⁹⁵ this type of claim is puz-
zling. Duguit contends that a theory of delegation cannot adequately account for
the shift which characteristically takes place within the administrative state. The
nature of the shift suggests that in reality legislation no longer retains a necessary
connection with sovereign will; rather than trying to find the authority of an
instrument in its source, we should be looking to its purpose. The ‘essential elem-
ent of every legal act’ (a concept that for Duguit includes acts of administrative
agencies) is ‘the end it has in view’.⁹⁶
Once purpose becomes the overarching criterion, then all legal acts are review-
able in the light of this ‘objective law’. The force of a statute ‘is derived from its
relation to a means of satisfying the social need’ and there can no longer exist the
notion of a discretionary power that is immune from review.⁹⁷ Similarly, it can
no longer be the task of a court simply to apply the statute; alongside all other
governmental institutions, courts have the duty to review all legal instruments,
including statutes, in the light of their overriding purpose—that of promoting
the objective law. This is not a special duty attached to courts: it is incumbent
on all institutions and officers to ‘intervene to protect and guarantee against all
obstacles . . . to the realization of social solidarity’.⁹⁸ Those entrusted with the tasks
of governing do not possess ‘a subjective right to public power’; rather, they are
‘under the obligation to employ their power to organize public service, to assure
and control its development’.⁹⁹ When Rubin argues that the system of govern-
ment forms a complex network and that its elaborate arrangements are designed
with the overall purpose of keeping governing institutions geared to social needs,
he is adopting the type of juridical scheme first systematized by Duguit.
The radical nature of Duguit’s thesis is revealed most clearly when we turn to
his analysis of regulations and ordinances that form the ligatures of the adminis-
trative state. These include not only the regulations made by administrative agen-
cies designed to further its objects, but also the mass of rules which govern the
way agencies conduct their business. For some, these rules are in the nature of
disciplinary law, a type of law that belongs to groups in general as distinct from
the state.¹⁰⁰ Duguit accepts that disciplinary law is the penal law of the group and
⁹⁵ Ibid, 81. ⁹⁶ Ibid, 142–143. ⁹⁷ Ibid, 78, 185.

⁹⁸ Léon Duguit, ‘The Law and the State’ (1917) 31 Harvard Law Review 1–185, 184.
⁹⁹ Ibid.
¹⁰⁰ Duguit, above n 91, 107. Cf Jellinek who, as an advocate of the subjective foundation of
public law (the state as a legal person), had argued that disciplinary power is a different type of
control from penal laws since only the latter type is derived from the state’s power to command:
Georg Jellinek, System der subjektiven öff entichen Rechte (Tübingen: Mohr, 2nd edn, 1905) 214:
‘die Disziplinargewalt des Staates über seine Beamten ist nicht eine ausschliesslich dem Staatsrecht
angehörige Erscheinung. Denn Disziplinargewalt ist nicht Herrschergewalt, sie ist nicht Ausübung von
Imperium, selbst wenn sie durch Imperium begründet wird ’ (‘the disciplinary power of the state over
its officials does not belong exclusively to public law. Since disciplinary power does not belong to
the power of rulership, it is not an exercise of Imperium even if it is founded by Imperium’).
that the group has an organic law. But the group ‘has also a penal law of which
the basis is the same as that of all repressive law; namely, the need to punish every
act which may inherently compromise the life of the group which is here the
operation of the service’.¹⁰¹ The national penal law ‘has as its end the security of
the people as a whole’, while the penal law of particular agencies ‘assures its oper-
ation in conformity with its fundamental purposes’.¹⁰² This discipline, Duguit
explains, ‘is simply a part of the objective law by which any given public service is
organised’. And ‘it may thus itself be organised in the form of jurisdiction’.¹⁰³
Duguit thus sees ‘disciplinary repression’ as a phenomenon that evolves with
the growth of the administrative state. ‘For some officials’, he notes, ‘the power
to discipline is exercised by real courts’ and in other cases ‘the scale of penalties
is definitely established’ within the agencies.¹⁰⁴ But the general point is that ‘the
evolution of discipline, in fact, goes, step by step, along the same road as the pub-
lic services towards autonomy’.¹⁰⁵ Duguit notes finally that modern society is
a mass of groups—associations, trade unions, and corporations—and the ‘the-
ory of the modern state is . . . compelled to adapt itself to the existence of these
powerful groups’.¹⁰⁶ The state must, in particular, ‘determine a method of their
co-ordination’ and ‘settle their relations with the government that exercises public
power’.¹⁰⁷ The collectivist solution (which is ‘only an extreme form of the imperi-
alist theory’¹⁰⁸) would be for the state to absorb all these groups. But Duguit’s
argument is that the state shifts its mode from command to co-ordination. These
groups are regulated by a government bound by an objective law: ‘It is the law of
a government which serves the public need and secures the co-ordination of the
modern corporate life’.¹⁰⁹
When Duguit shows how public law in the administrative state is founded
on co-ordination (social solidarity or public service) rather than command, he
is demonstrating the rise of potentia and the decline of potestas or, in Mann’s ter-
minology, the rise of infrastructural power and the decline in despotic power.
The architecture of this system of public law is that of a complex network of
institutions, both public and private, that are co-ordinated in the service of the
public good (what Duguit, following Durkheim, calls social solidarity). The code
by which public law undertakes its work is not derived from the tension between
the subjective right of the individual and the subjective right of a personified
state; rather, it is generated by the tensions and trade-offs involved in sustaining
this network of social co-ordination. This has significant juristic implications. It
suggests in particular that there can be no clear break between justice and police:
¹⁰¹ Duguit, above n 91, 108. ¹⁰² Ibid. ¹⁰³ Ibid, 109.
¹⁰⁴ Ibid. Duguit gives as an illustration the regulations of Parliament which are established by
resolutions of each chamber and are not formal statutes: ‘They establish penalties, one of which—
censure and temporary exclusion—may, in the Chamber of Deputies, actually lead to imprison-
ment’ (ibid, 110). This, he argues, is a penal law and ‘is obviously a sentence pronounced by a court’.
But it is ‘difficult to reconcile all this with the conception of law as the command of a sovereign
will’ (ibid).
¹⁰⁵ Ibid, 109. ¹⁰⁶ Ibid, 117. ¹⁰⁷ Ibid. ¹⁰⁸ Ibid, 118. ¹⁰⁹ Ibid.
the juridical logic of legal/illegal blends into, and with respect to issues of admin-
istrative government tends to be supplanted by, the disciplinary logic of propor-
tionate/ disproportionate.¹¹⁰
In this light, the basic law of the administrative state is a type of disciplinary
law. All governmental action becomes reviewable in the light of a means-end
rationality, the precise specification of which is determined by the institutional
remit and competence of the particular official agency. Virtually all adminis-
trative agencies are now subject to forms of performance review in accordance
with value-for-money principles, a process that has been both strengthened
and systematized as a result of the rise of the ephorate.¹¹¹ All public authorities,
including the finance ministries that institute them, are bound by tight fiscal
rules. Even the judiciary now views itself as a supervisory institution whose pur-
pose is to oversee the work of lower-tier dispute-settlement agencies.¹¹² When
exercising their public law jurisdiction, the courts review the decisions of other
public bodies—that is, all agencies that have taken on the task of promoting or
co-ordinating the ‘public interest’—in the light of the rationality, reasonableness,
and proportionality of their action.
The jural foundations of the network model Rubin advocates had thus been
laid down almost 100 years earlier by Duguit. But its roots are even deeper. ‘How
¹¹⁰ Cf Coke’s assertion to James I that justice is ‘not to be decided by natural reason, but by the
artificial reason and judgment of law, which law is an act that requires long study and experience
before that a man can attain to the cognizance of it’: Prohibitions del Roy (1607) 12 Co Rep 63.
¹¹¹ Value-for-money performance review operates according to an ‘input-throughput-output-
impact’ framework: service costs (inputs) are converted into resources, which are then transformed
as throughputs into outputs, and these outputs are measured, by reference to overall service objec-
tives, as outcomes (impact). The relation between cost and resources created yields the measure of
economy, that between resources and outputs, efficiency, and that between outputs and outcomes,
eff ectiveness. Frameworks of this nature have become highly influential methods of evaluating pub-
lic service and the performance indicators they generate have become key variables driving public
service reforms. See Michael Power, The Audit Society: Rituals of Verification (Oxford: Clarendon
Press, 1997).
¹¹² See, eg, Secretary of State for Constitutional Affairs, Transforming Public Services: Comp-
laints, Redress and Tribunals Cm 6243 (London: HMSO, 2004), 6: ‘The proposals set out in this
White Paper are a major early step in the wider strategy we are developing to transform civil
and administrative justice and the way that people deal with legal problems and disputes. Our
strategy turns on its head the Department’s traditional emphasis first on courts, judges and court
procedure . . . It starts with the real world problems people face. The aim is to develop a range of
policies and services that, so far as possible, will help people avoid problems and legal disputes in
the first place; and where they cannot, provides tailored solutions to resolve the dispute as quickly
and cost-effectively as possible. It can be summed up as “Proportionate Dispute Resolution” ’. See
also Anufrijeva v Southwark London Borough Council [2003] EWCA 1406 at [79]–[81], per Woolf
LCJ: ‘In the course of the hearing of these appeals the court asked the parties to indicate the scale
of costs incurred by them in the court below. . . . we were concerned that, even if the proceedings
were conducted as economically as possible, the cost of the proceedings would be totally out of
proportion to the damages likely to be awarded. Th is has proved to be the position . . . The costs
at first instance of each party were totally disproportionate to the amount involved. When the
total costs of both sides are looked at, including the appeal, the figures are truly horrendous, and
the situation is made even more worrying by the fact that all the parties are funded out of public
funds . . . What can be done to avoid a repetition of this situation in future proceedings?’
can it be’, asked Rousseau, ‘that they [the people] obey and no one commands,
that they serve yet have no master; all the freer in fact than in apparent subjection,
no one loses any more of his own freedom than might harm someone else’s?’¹¹³
This marvel, Rousseau explains, is a consequence of adopting the principle of the
general will and then ensuring that, through the workings of droit politique, the
institutions of law are able to operate to give this principle practical effect.
Under modern conditions, Rousseau’s ‘general will’ is converted into a var-
iety of surrogate formulae: ‘the greatest happiness of the greatest number’
(Bentham), ‘the promotion of social solidarity’ (Duguit), ‘provision for exist-
ence’ (Forsthoff ),¹¹⁴ or even, simply, the network’s point of optimality. Whatever
the precise terminology, the basic point was first explicitly stated by Rousseau.
Rousseau recognized not only that the aim of political association is ‘the preserva-
tion and prosperity of its members’ but also discovered the metric for measuring
it: ‘All other things equal, the Government under which the Citizens . . . populate
and multiply, is without fail the best: that under which a people dwindles and
wastes away is the worst’.¹¹⁵ Having so identified the principle, Rousseau is able
to proclaim: ‘Calculators, it is now up to you: count, measure, compare’.¹¹⁶ The
basic principle of droit politique, that of promoting the general will, is in the mod-
ern era converted into the principle of social solidarity, and under conditions of
late-modernity absorbs a disciplinary logic and may once again be transformed
into the point of optimality of the administrative network of government.
VII. The Triumph of the Social?
The transformation of public law signalled by Duguit and his followers is highly
controversial, not least because the shift in orientation required for the objective
law to be realized results in a blurring of many of the conventional distinctions
on which the concept of public law has been constructed. Objective law seeks to
eclipse the public in the name of the social.
Once objective law is set in place, the chain of authorization of subjects
(people—sovereign—officials—citizens) is broken and the distinction between
¹¹³ Jean-Jacques Rousseau, Discourse on Political Economy [1756] in The Social Contract and
1997), 3–38, 10.
¹¹⁴ Ernst Forsthoff, author of the leading post-war German administrative law text, contended
that administrative law was best explained by focusing on functions rather than forms and that
the basic function of administrative law is that of Daseinvorsorge, the provision of the basic means
for human existence. See Ernst Forsthoff, Lehrbuch des Verwaltungsrecht (Munich: Beck, 9th edn,
1966), 9–10. See further Jens Kersten, ‘Die Entwicklung des Konzepts der Daseinvorsorge im
Werk von Ernst Forsthoff ’ (2005) 44 Der Staat 547–569; Florian Meinel, ‘Ernst Forsthoff and
the Intellectual History of German Administrative Law’ (2007) 8 German Law Journal 785–799;
Peter Caldwell, ‘Ernst Forsthoff and the Legacy of Radical Conservative State Theory in the Federal
Republic of Germany’ (1994) 15 History of Political Thought 615–641.
¹¹⁵ Rousseau, The Social Contract [1762], above n 113, 39–152, 105. ¹¹⁶ Ibid.
matters constitutional (relating to the conferral of jurisdictional authority on
institutions of government) and matters administrative (concerning the mode of
discharge of governing tasks) is rendered redundant. All governing bodies now
claim their authority not from some original conferral of jurisdiction but from
their ability effectively to discharge public (ie, social) tasks. This undermines the
public/private distinction: if government is conceived as forming an elaborate
network geared to the realization of social objectives, then once those objectives
are adequately specified the mode of delivery is determined by the metric of effi-
ciency and effectiveness, and this is likely to involve a mix of private and public
agencies. The public/private distinction ceases to be one of clear institutional spe-
cification. It is the concept of the social that now seems to determine regulatory
objectives and to shape the variety of techniques (some public, others private)
required to ensure their realization. Once the network metaphor is set in place,
the foundational elements of public law need to be reconsidered. The triumph of
objective social law would signal an overcoming of the tensions between potestas
and potentia, and mark the destruction of the modern edifice of public law.
The extent of this challenge is highlighted once it is recognized that the blur-
ring of the public/private distinction has been accompanied by the erosion of
another formative boundary: that between national and international. Once gov-
ernment is conceived not as the exercise of sovereign authority but the realization
of social objectives through a network of institutions, then not only is the public/
private distinction blurred but so too is the traditional distinction between inside
and outside. Just as a mix of public and private bodies is harnessed in the service
of collective goals, so too may a range of domestic and international agencies
be deployed. Over the last 50 years or so, there has been a steady increase in the
amount of governing power being exercised by transnational, supranational, and
international bodies. This growth has led to a fragmentation of international law,
as international organizations, multinational corporations, and international
NGOs emerge alongside states as actors in the international legal sphere.¹¹⁷ Such
developments compound the confusion by adding a blurring of inside/outside to
that of public/private.
The internationalization of governing power may be seen across several dimen-
sions: not only through the extending influence of the United Nations (espe-
cially with respect to humanitarian intervention and international criminal
jurisdiction), but also with respect to sectoral organizations such as the World
Trade Organization (especially with respect to its enforcement mechanisms), and
regional institutions such as the European Union. The last illustration has a spe-
cific relevance for this study since the transfers of powers to the European Union
¹¹⁷ See Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern
Anxieties’ (2002) 15 Leiden Journal of International Law 553–579; Martti Koskenniemi,
‘Formalism, Fragmentation, Freedom: Kantian Themes in Today’s International Law’ (2007) 4
No Foundations: Journal of Extreme Legal Positivism 7–28; Martti Koskenniemi, ‘The Fate of Public
International Law: Between Technique and Politics’ (2007) 70 MLR 1–30.
include legislative, executive, and judicial functions. And although Member

States remain ‘masters of the treaties’, the legal acts of EU institutions can have
direct effect within the legal orders of Members States and may take primacy over
provisions of domestic law. The extension of the competences of the European
Union has thus generated considerable political controversy. These controversies
must be set in an appropriate context.
This context is framed by three main factors: the growth of the police power,
the rise of the ephorate, and the new separation of powers. First, virtually all the
tasks assumed by the European Union concern matters of police. Both the EU’s
founding objectives and driving impetus have been those of economic regulation
and the rationalization and integration of the economies of western Europe.¹¹⁸
The European Union is mainly concerned with rule-making and regulation in
such technical fields of government as trade, monetary policy, and regulatory
standards;¹¹⁹ it has no significant responsibility for those major areas of govern-
mental service provision—such as health, education and social welfare provi-
sion, pensions and family policies, law and order, and the provision of physical,
social, and cultural infrastructure—that remain the responsibility of nation-
states. The evolution of the European Union might therefore best be understood
in the context of the rise of the ephorate: much of the EU’s functions relate to
the acquisition of technical knowledge in these regulatory fields, and assisting
inter-governmental institutions (notably the Council of Ministers) to make pol-
icy decisions. It is when we turn to the issue of the separation of powers, however,
that the problems are thrown into relief. In particular, as Vibert notes, ‘functions
that are being separated out at the national level are mingled together within EU
and at the international level’.¹²⁰ The threat posed by internationalization arises
because the extension of the authority of such bodies simply cannot be explained
in terms of supporting political decision-making in a technical context; many
of these ‘expert’ bodies are directly taking on political decision-making respon-
sibilities in ways that cannot be justified according to the precepts of modern
constitutionalism.¹²¹
¹¹⁸ See Alan S Milward, The Reconstruction of Western Europe, 1945–1951 (London: Methuen,
1984); Milward, The European Rescue of the Nation-State (London: Routledge, 1992).
¹¹⁹ Giandomenico Majone, Regulating Europe (London: Routledge, 1996), esp Pt I.
¹²⁰ Vibert, above n 55, 16. This problem is seen most notably with respect to institutions like the
European Commission which, although unelected, possess many powers with respect to policy-
making, law-making, and enforcement action which violate not only the traditional notions of the
separation of powers but also the new ideas of separation of powers arising from the growth of the
ephorate.
¹²¹ Moravcsik’s thesis—that there is no ‘democratic deficit’ in these contexts—is therefore
only partly correct. To the extent that he highlights the technical/regulatory role of such institu-
tions he correctly specifies the police function undertaken by these bodies. But he underplays the
degree to which expert bodies that exists to support decision-making are themselves becoming
decision-makers. See Andrew Moravcsik, ‘The Myth of Europe’s “Democratic Deficit” ’ (2008)
Intereconomics 331–340.
The juristic solutions proposed to this apparent blurring of national/inter-
national boundaries all tend to be variations on the theme of the rise of objective
social law. Some have promoted the creation and extension of the concept of jus
cogens as a set of higher status values and principles that structure the entire inter-
national sphere.¹²² Some have extended this general argument and advocated the
‘constitutionalization’ of transnational and international bodies,¹²³ and have even
extended their claims to make the case for a universal ‘multi-level constitutional-
ism’ that structures governmental decision-making from local to global levels.¹²⁴
Others assert ‘humanity’ as the foundational principle of public law (whether
domestic or international)¹²⁵ or claim that the entire edifice of public law must be
overcome in favour of ‘societal constitutionalism’.¹²⁶ Notwithstanding variations
in style of presentation—ranging from the assertion of a new natural law to the
adoption of late-modern systems theory—all can be understood to be elabora-
tions of Duguit’s basic thesis concerning the continuing evolution of objective
law into what he calls the ‘intersocial’ arena.
Duguit argues that once social groups (ie, nation-states) are organized in
accordance with the discipline of objective law, bonds of solidarity are formed
between individuals belonging to different groups, and these eventually evolve
into an ‘intersocial law’, which is an embryonic form of modern international
law.¹²⁷ With the growing interdependence between members of different social
groups, a sentiment of intersocial justice emerges, by which he means ‘the sen-
timent that distributive justice and commutative justice should be as much
respected in the relations of individual members of different groups as in the
relations of members of the same group’.¹²⁸ And through the ‘double sentiment
of intersocial sociality and intersocial justice’, which can exist only at a ‘fairly
advanced stage of human history’, an international juridical norm is created. This
norm does not, of course, rest on promulgation by superior will: it rests ‘on the
consciousness existing in the individuals to whom it applies that this rule should
¹²² See, eg, Jonathan I Charney, ‘Universal International Law’ (1993) 87 American Journal of
International Law 529–551.
¹²³ See, eg, Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of
International Law (Oxford: Oxford University Press, 2009); cf Martin Loughlin, ‘What is con-
stitutionalization?’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism?
(Oxford: Oxford University Press, 2010), ch 3.
¹²⁴ See, eg, Ingolf Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam:
European Constitution Making Revisited?’ (1999) 36 CML Rev 703–750; Thomas Cottier and
Maya Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck Yearbook of
United Nations Law 261–328.
¹²⁵ See Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of
¹²⁶ See, eg, Gunther Teubner, ‘Fragmented Foundations: Societal Constitutionalism beyond
the Nation State’ in Dobner and Loughlin (eds), above n 123, ch 16.
¹²⁷ Léon Duguit, ‘Objective Law’ (1920) 20 Columbia Law Review 817–831 (Pt I); 21 Columbia
Law Review 17–34 (Pt II); 126–143 (Pt III); 242–256 (Pt IV), at 250.
¹²⁸ Ibid, 251.
be furnished with a sanction by compulsion’.¹²⁹ International law, it is argued,

now establishes objective (social) norms that governments of all nation-states are
obliged to respect.
The rise of the social marks the return of the religious, albeit in a different
form. It signals the return of the overarching claims of the right and the true.
This amounts to a direct and fundamental challenge to the concept of public law
which has here been elaborated. Public law is founded not only on the drawing of
a distinction between the political and the social, but also between the discourses
of public reason and religious truth. As its early-modern founders fully appreci-
ated, the most basic purpose of the practices of public law was that of maintaining
the civil peace against a backcloth of (often violent) competing truths.¹³⁰ Public
law is born of a compromise effected between antagonists who cannot defeat one
another and it is in this sense that it becomes ‘the organising schema of a de
jure fragmented public space assuring unresolvable confrontation’.¹³¹ Those who
today seek to overcome this prudential public reason in the name of some higher
universal truths are unlikely to be able to realize their apparent objectives. But to
the extent that their ideas are now exerting a major influence in public affairs, it
is likely to ensure only that the future will be marked by confusion, disappoint-
ment, and the generation of new forms of conflict.
¹²⁹ Ibid, 253.

¹³⁰ See above ch 2, 73–83. See also Gary Wickham, ‘The social must be limited: Some problems
with Foucault’s approach to modern positive power’ (2008) 30 Journal of Sociology 29–44.
¹³¹ Gauchet, above n 79, 192.
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Index
absolutism 51, 61, 62–69, 127, 130, 436n Böckenförde, E-W 50n, 70n, 191, 217n,
Ackerman, B 238n, 301–305 313n, 321n, 368, 369, 370n
Act of Settlement 263–264 Bodin, J 9, 51, 55, 56–62, 63–71, 75, 76, 83,
administration 393n, 396, 407, 408, 417, 94–95, 98, 106, 107, 117, 162n, 166,
435, 437–438, 441 185, 189n, 228, 331, 376–377, 397, 410,
administrative law 12, 431–432, 434, 412n, 452–453
435–445 Boehm, C 197–198
Agamben, G 401 Bolingbroke, Viscount 278, 279
Althusius, J 9, 70–71, 95–96, 98, 412n Bork, RH 299n, 360n, 364–365
American Bill of Rights 286, 351, 353, Bourdieu, P 220, 272n
355–356, 358 Boutmy, E 248, 266n
American Civil War 194, 295, 299, 301 Bracton, H de 1, 40–41, 44n, 110
American Constitution 30n, 277–278, 281, Brewer, J 260n, 261–262, 418n
284, 285, 289, 293, 297–305, 351–352, Brown v Board of Education 295, 299n, 358n
359–367, 387, 391, 392 Buckingham, Duke of 257
American Declaration of Independence 47, bureaucracy see administration
233, 282–283, 285, 352, 356 Burke, E 265n, 275–276, 277, 279n, 355,
American President 388–391, 393–395 361, 365n
American Revolution 123, 214, 233, 280, Burlamaqui, J-J 110
286, 342, 351, 352, 357 Burns, JH 44n, 46–47, 61n, 62n
American New Deal 302–305, 358
ancien régime 72, 276, 287, 438, 441 Calvinism 47, 409, 410, 413, 414
Anglo-Saxon constitution 61–62 Calvin’s case 42–43, 45
Anne, Queen 423 Cam, H 248n, 249
Anson, WR 195, 264n cameralism 417–422, 436, 437
Aquinas, T 33, 34, 39–40, 44, 46, 73 canon law 17, 23, 30n, 31, 38n, 39, 41, 46,
Arendt, H 169–170, 174–175, 286–287, 51
356–357 Carré de Malberg, R 194, 322–323
Aristotle 33, 86, 122, 204n, 317n Charlemagne 26, 28
Austin, J 4, 109 Charles I 3, 257–258, 280
Aylmer, GE 255, 258n Charles II 258
Charles IX (Fr) 64
Bacon, F 101n, 256, 280n Christ 30, 33, 40–42
Bagehot, W 100–101, 224n, 266n, Church (Christian) 19–25, 28–30, 32,
268n, 272 34, 46, 78, 252–253, 376, 411,
Bähr, O 320 413–414, 415
Balibar, E 104 Church, WF 53n, 64n, 71n
Barker, E 72n, 312n civil religion 84, 119, 176, 230, 306
Baldus of Ubaldis 52 civil rights 343–346
Bartolus of Sassoferato 37–38, 52, 54, 109 Clark, JCD 264n, 265, 266n
Bate’s Case 378, 379n, 380n, 387 Clement III, Pope 32
Beatty, D 366 Coke, E 24n, 42–43, 61, 379n, 443, 460n
Bentham, J 4, 109, 355, 423n, 424, 442, Comte, A 403, 404
443n, 461 conciliarism 32–37
Berlin, I 172n, 173n Conring, H 423
Beza, T 66, 95 Constant, B 172n, 173, 433n
Bible 19, 24, 27, 31, 47 Constantine 24, 27
Bickel, A 292n, 360–362, 365 constituent power 221–228, 285–287
Bill of Rights 1689 3, 30n, 260, 378n constitution, concept of 209–216, 275–282,
Blackstone, W 59n, 270n, 381–382, 424 337–341, 364, 367, 376
512 Index
constitutional patriotism 305–311 Fortescue, Sir J 42, 44
constitutional rights 342–372 Foucault, M 62n, 98, 103n, 107n, 167–170,
constitutionalism 205–206, 220, 406, 413, 416
medieval 46–49, 51, 94, 111 Fraenkel, E 163–164, 398n
modern 46–49, 107, 278, 288–296, 306, Frankfurter, F 295
310–311, 312, 350, 357–367, 371–372, Franklin, JH 54n, 55, 65n, 66n, 69n, 73
375, 390, 463 Frederick the Great 185, 436n
Corwin, ES 172n, 292n, 309n Frederick William I (Prussia) 420, 436n
Cromartie, A 94 Freeden, M 220
Cromwell, O 258, 280n freedom see liberty
Cromwell, T 255 French constitutions 277, 352,
353–354, 402n
Dahrendorf, R 219 French Declaration of Rights 47, 233, 276,
democracy 48, 59n, 105, 118, 132, 197, 286, 323, 352, 353, 355–356, 367
243, 283, 306, 307–308, 329, 335, French Revolution 72, 120–121, 123, 127,
362, 363, 370, 389, 392, 406, 440, 145, 176, 189, 194, 214, 224, 233, 276,
446, 450–451, 452, 453, 457 286, 346, 357, 403, 437
Descartes, R 98–101, 140 Freund, E 426–427
Dicey, AV 4, 59n, 224n, 255n, 266–267, Friedrich, CJ 400n, 436–437
297, 315–317, 334n, 400n, 441–443 Fuller, LL 333–335
disciplinary power 169, 452, 454, fundamental law 1–5, 10, 67, 84, 94–95, 107,
458–459, 460 108, 122, 196, 209, 210, 225, 254, 257,
disciplinary revolution 408–416 259, 279, 288–296, 297, 312, 329, 383,
Dred Scott v Sandford 294–295 385, 387
droit politique see political right
Duguit, L 323, 402–406, 457–461, Gadamer, H-G 180n, 220
464–465 Gauchet, M 6–7, 48–49, 63, 84n, 103n,
Dunn, J 11n, 13n, 375n, 386, 452n 455n, 465n
Durkheim, E 404, 459 Geertz, C 183n, 187, 220
Dutch Republic 414–415 Gellner, E 176n, 200
Dworkin, R 362n, 365n, 370–371 Gerber, CF von 191–192, 214, 223, 234,
Dyzenhaus, D 217n, 234n, 237 320, 322, 403
Gierke, O von 67n, 71n, 72n, 320n
Ecclesia 30, 33–35 Gorski, PS 409–410, 413–416, 433n
Edward I 246, 251 Gough, JW 1n, 3n, 67n, 440n
Edward III 246–267 Gregory I, Pope 24
Edward VI 253 Gregory VII, Pope 30n, 32
Eisenhower, D 308 Grotius, H 9, 59n, 73, 74–76, 79, 80, 82,
Eisgruber, C 296 85, 88, 95, 110, 113, 198n, 412
Elizabeth I 42, 253
Elton, GR 251–252, 253, 254, 255, 270 Haakonssen, K 5n, 73n, 74, 347n
Ely, JH 362–363 Habermas, J 131, 164, 170–171, 202, 204,
emergency powers 398–402 309, 310n, 347n, 348, 350, 363n,
English civil war 77, 271, 415n 370–372
Ephors 95, 145, 448–452, 463 Hale, Sir M 61n, 377
Ertman, T 242, 255n, 261n Halifax, Marquess of 4, 365n
Esmein, A 194n, 195n, 323 Hamilton, A 107n, 276, 283, 290–291, 293,
Etat de droit 322–323 360, 388n, 389n, 391, 394, 402, 454n
European Union 462–463 Hand, L 401
Hart, HLA 332
Federalist Papers see Hamilton and Madison Hauriou, M 219, 233–235, 323, 401n, 405n
Fichte, JG 9, 140–146, 153, 156, 162n, Hayek, FA 164, 204, 334n
169, 207n, 449–450 Hegel, GWF 9, 91–92, 93n, 127n, 129, 140,
Figgis, JN 28n, 36n, 47n, 73n, 190 146–156, 162n, 190, 204n, 207, 331,
Fleming, Baron 378, 384 349–350, 354–355, 365, 369, 395, 403,
Forsthoff, E 321n, 324n, 439n, 461 430, 431, 432
Index 513
Heller, H 208n, 234–237 Laband, P 191–192, 214, 234, 320,
Henry I 244 322, 403, 439
Henry III 246 Lassalle, F 214, 216
Henry VIII 38, 43, 251, 252–255, lawgiver 116–117, 124, 135
269, 270n Lefort, C 48
Hintze, O 240–242, 413 Leo I, Pope 20–21
Hobbes, T 4, 8, 9, 73, 76–80, 85, 86, Leo III, Pope 26
95–96, 97–98, 109, 113–114, 119, lex terrae 39, 54, 60
132, 134–135, 137–138, 158, 162n, liberty 112–115, 123–124, 129, 138, 145,
171–173, 176, 177, 188–189, 197, 152, 154, 158, 171–177, 208, 230–231,
201n, 240, 281–282, 306, 331, 377n, 269, 321, 337, 349, 352, 354, 357, 370,
408–409, 412 426, 433, 444
Hochstrasser, TJ 85, 86n Lincoln, A 297, 307
Holdsworth, WS 379, 381n, 442n Lindahl, H 175, 226–227, 229, 232,
Holmes, S 49n, 70, 231n, 339 233, 401n
Holy Roman Empire 28, 32, 38, 52, 79, Lindenfeld, DF 418n, 422n, 432n
120, 190, 417 Lippmann, W 305
Hotman, F 54–55, 56, 64–65, 83 Lipsius, J 9, 412
Hughes, CE 295 Locke, J 9, 47, 86, 115n, 262n, 283n, 348,
Huguenots 64, 65, 70, 73, 76 383, 383–387, 389
Hume, D 220, 436 Loughlin, M 4n, 5n, 10n, 87n, 107n, 163n,
Hunter, I 81, 82n, 86n 186n, 208n, 223n, 224n, 316n, 317n,
382n, 396n, 443n, 444n, 464n
Ignatieff, M 5n, 347n, 414n Louis XIV (Fr) 185, 259
impeachment 256–257, 263 Lutheranism 414
international law 87, 128, 462, 464–465
investiture contest 32, 37 Machiavelli, N 66, 70, 86, 103n, 139, 188
Madison, J 282, 284, 290–291, 297–298,
James VI and I 24n, 72n, 256–257, 305–306, 340, 351–352, 362, 375,
379–380 390, 400n
James II 3, 259, 260, 383n Maistre, J de 277n, 279
Jefferson, T 283, 399–400, 401, 403, 425 Maitland, FW 25, 43, 195n, 248n, 254n,
Jellinek, G 163n, 192–194, 217–219, 272, 442n, 446
286n, 320n, 322, 331, 352n Manent, P 18
Jhering, R von 191, 320 Mann, M 165–166, 170, 241n, 416,
John of Salisbury 28n, 29 432, 459
Judicial review 288–296 Mansfield, HC 383n, 385, 386, 388, 391
Justi, JHG von 420–421, 429–430, Marbury v Madison 289–293, 295, 296, 301
432–433 Marshall, J 289–293, 298
Justinian 22, 36n, 38, 51–53, 187n Marsiglio 33, 34, 36
Marx, K 27, 350n, 396n
Kammen, M 278n, 294n, 336n Mary, Queen 253
Kant, I 87, 120–131, 135, 140–142, Matthew, St 20
148, 153, 154, 155, 162n, 190, Mayer, O 320n, 439, 443n
211n, 214, 217, 318–320, 334n, McCulloch v Maryland 293n, 298
388n, 403, 430, 432 McIlwain, CH 250n, 253n, 280n
Kantorowicz, EH 41–43, 45–46, Meiji Constitution 222–223
100, 380n Meinecke, F 66n, 87–88, 91
Kelley, DR 51n, 52n, 54n, 55n Middle Ages 1, 18, 23n, 32, 46, 187, 248,
Kelsen, H 131n, 211n, 214 249, 250, 252, 268
king’s two bodies 42–43, 45 Mill, JS 176
Knemeyer, F-L 425, 432n, 433n Millar, J 5
Koselleck, R 1n, 77n, 78, 87n, 184n, 350n Mohl, R von 318–319, 431
Kramer, LD 278n, 288n, 291n, 303 Montesquieu, Baron 9, 59n, 134m 356–357,
Krieger, L 81n, 85, 86n, 128, 130, 382–383, 388, 390, 394, 438, 454
190, 318n, 319n, 391 Mortati, C 163, 397, 401n
514 Index
nation 62, 224–226, 404 princeps legibus solutus est 36, 44, 57, 410
natural law 18, 51, 68, 73–83, 84–85, 110, Ptolemy of Lucca 35, 44
120, 348, 349, 350, 371 public sphere 228–231
natural rights 74–75, 97, 114, 138, 140–146, Pufendorf, S 9, 59n, 73, 79–83, 85, 95,
172, 343–345, 350 110, 228, 412
Nazi regime 163, 321, 359, 398
Norman Anonymous 41 quod omnes tangit 36, 44
Norman Conquest 243–244, 248, 268
Raeff, M 417n, 419, 428, 432n
Oakeshott, M 17n, 47, 102, 159–163, 165, Rakove, JN 351n, 352n, 388, 389n
155, 167, 175n, 179n, 195, 200, 204, Raleigh, W 187–188
220, 238n, 275n, 324–332, 334, 335, Rawls, J 131, 365
337, 338 Raz, J 334–335
Oakley, F 46n, 48n, 72n, 380n Rechtsstaat 129, 211n, 212, 312–314,
Ockham, William of 33, 36 317–321, 333, 337–341, 367, 369,
Oestreich, G 410–413, 416 370, 430, 431, 437n
Osse, M von 418 Reform Acts 1832, 1867 266, 267, 271
Reformation 47, 78, 252–254, 256, 269,
Paine, T 159n, 277, 278–279, 342–350, 408, 409, 413, 414, 416, 417
352, 361, 362, 367 representative government 262–268, 348
Parliament, English 243–272, 388 republicanism 126, 174–175, 284, 287, 288,
Papacy 19–24, 30, 34, 36, 78, 87, 252 348n, 363, 389, 390, 391
Pasquino, P 387, 399n Restoration 258, 261, 381
Paul, St 23, 78 revolution 1688/89 3, 166, 260, 262, 270,
Peace of Westphalia 79, 81n, 418, 423 271, 381
Peter, St 20, 45n, 78n Ricardo, D 349
Plessner, H 199–204 Roberts, C 256n, 257
Pocock, JGA 54n, 61n, 62n, 368n, Robespierre, M 353
378n, 440n Roman Church 18, 35, 64, 252, 417
Polanyi, M 220 (see also Church, Christian)
police/Polizei 168, 318, 408, 419, 422–432, Roman Empire 18, 19, 26–27, 51
436, 454 (see also Holy Roman Empire)
political pact 113–114, 143–144, 201–202, Roman law 17, 18, 20, 22, 23, 31, 38, 39,
221–222, 228, 345 44, 51–52, 54, 55, 56, 60, 61, 73, 74,
political power 11–12, 102–106, 158, 160, 82, 83, 109, 157, 160, 187, 244, 287,
164–171, 218–220, 221, 229, 231, 378, 383
337–341, 357, 361, 403–405, 456 Rotteck, K von 190–191, 430–431
political right 11–12, 58, 59, 93–94, 98, 107, Rousseau, J-J 9, 13, 60n, 84n, 107, 108–119,
110–111, 112–117, 122, 125, 129, 142, 120–124, 127–130, 132–140, 153–154,
146–153, 156, 157–159, 160, 170, 186, 176n, 189, 196, 197, 198n, 201n, 228,
109, 213–137, 272, 276, 288, 293, 303, 230n, 232–233, 284n, 285n, 306, 312,
311, 361, 366, 371, 382, 383, 387, 400, 343, 345–346, 348, 354, 356, 391, 403,
402, 404, 428, 431, 457, 461 427–428, 429, 461
Polizeistaat 430, 431, 434 Rubin, EL 446–447, 454–456, 457,
Pollard, AF 243n, 249, 250n, 269n 458, 460
pope see papacy rule of law 2–3, 4, 59n, 312–317, 324–331,
Posner, RA 360, 365, 366n 332–341, 387, 398
Post, G 40–41, 44n, 187n, 189, 248n Russian revolution 214
potentia 12, 104–105, 108, 164–177, 218,
376, 380, 407–408, 415, 416, 417, 428, St Bartholomew’s Massacre 64, 66
429, 433, 459, 462 salus populi suprema lex esto 63, 97, 387, 399,
potestas 12, 24, 104–105, 108, 164–165, 418, 420
167, 169, 171–177, 186, 207, 218, 229, Sanchez-Cuenca, I 338n, 339
375–376, 407–408, 416, 459, 462 Schmitt, C 48n, 198n, 209–217, 219, 221,
practice, concept of 219–221 226, 228, 232, 235, 303n, 308, 313n,
prerogative powers 224, 376–387, 397–398, 314, 322, 333, 367–368, 386n, 389n,
405–406, 407, 418, 432 397, 400–401, 402
Index 515
Scott, J 261–262 Texas v White 194–195
Seckendorff, V von 419, 421n Thayer, JB 291n, 293–294, 364
separation of powers 144, 391, 398, 402, Thirty Years’ War 79
438, 452–456, 463 Thomasius, C 79, 82–83, 85
Seyssel, C de 55 Thompson, MP 94–95
Sherman, R 388 Tierney, B 30n, 34n, 36, 40n, 46, 47n
Shklar, JN 138n, 313n, 316 Tilly, C 60n, 240
Sieyes, E-J 72n, 224–226, 228, 231 Tocqueville, A de 231n, 290n, 307–308
Skinner, Q 8n, 38, 50n, 52n, 60n, 61n, Tönnies, F 199–201
64n, 109n, 174n, 183, 188–189, 205 Tribe, K 418n, 425n, 432n
Small, AW 417 Tribe, LH 290n, 363n, 420n, 421n
Smend, R 230n, 309n, 397 Tuck, R 4n, 47n, 73n, 75, 76, 77n, 78, 79,
Smith, A 9, 347, 348, 349, 418, 421, 86, 343n, 409, 412
423–424 Tulis, JK 285n, 394–395
Snowiss, S 288n, 289n, 291n, 292 Tully, J 81n, 101
social contract see political pact Turner, S 220–221
social progress 392, 396, 397, 402–403 Tushnet, M 299n, 401
societas 160–163, 204, 375
sovereignty 58, 66–69, 70–73, 74–76, Ullmann, W 18, 19n, 20n, 21n, 23n,
82–83, 84, 91, 97, 102–103, 111, 30, 31n, 37n, 39n
117–119, 157, 184–186, 194, 229, Ulpian 38, 187
270, 315–316, 346, 401, 405, 428 Unam Sanctam 42
Spinoza, B de 9, 92–93, 103–106, 143, universitas 160–163, 204, 375, 419
162N, 164–166, 169, 171–173, 177, US v Carolene Products 303n, 358n, 363
218, 228, 231
Staatslehre 190–196, 212–215, 216–217, Vibert, F 449, 451, 453, 454n, 463
234–237 Virginia Declaration of Rights 280–281, 351
Staatsrecht 79, 81, 163, 209, 231, 320,
337–341, 423 war 60, 76, 132–133, 198, 240, 251, 261,
Star Chamber 379 342, 343, 377, 390–391, 411
state-building 239–243, 275, 410 Washington, G 390
state, concept of 50, 68–69, 82, 100, 102, Weber, M 165n, 177n, 240–241, 389,
108, 146–153, 161–163, 174–176, 412–413, 416, 437–438, 446
183–208, 209, 212–215, 217, 238–239, Weimar Constitution 212, 214–215, 216,
332, 375, 403, 409, 418, 431, 435 396, 400, 402
Stein, L von 209, 431–432 Wilks, M 29, 33–34
Steinberger, PJ 207–208, 239n William I 244
Stolleis, M 193n, 319n, 321n William III 259–261, 262, 270n
Story, J 364 Wilson, J 292
Strafford, Earl of 257 Wilson, W 392–395
Strayer, JR 62–63 Wittgenstein, L 101, 178–179,
Stubbs, W 244n, 245, 246, 249n 220, 221n
Sunstein, CR 362, 365 Wood, GS 288n, 290n, 293, 304n
Wormuth, FD 72n, 377n, 379n
Taylor, C 7n, 10, 92n, 93n, 155–156,
207n, 334n, 365, 409n Zabarella, Cardinal 35

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FOU N DAT IONS OF PU BL IC L AW

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Introduction: Rediscovering Public Law 1

2. The Birth of Public Law 50

3. The Architecture of Public Law 91

5. The Science of Political Right: II 132

6. Political Jurisprudence 157

7. The Concept of the State 183

8. The Constitution of the State 209

9. State Formation 238

IV. The Struggle for Responsible Government 255

10. The Constitutional Contract 275

11. Rechtsstaat, Rule of Law, l’Etat de droit 312

12. Constitutional Rights 342

13. The Prerogatives of Government 375

15. The New Architecture of Public Law 435

law as an expression of the constitutive principles of right-ordering (ius, le droit,

²⁷ Charles Taylor, ‘Overcoming Epistemology’ in his Philosophical Arguments (Cambridge,

Public law is formed as a distinct ﬁeld of knowledge alongside the emergence

¹ Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 198.

I. The Theological-Political Question

must here be placed in question. An inquiry into the foundations of governmen-

II. The Papal Monarchy

III. Empire and Papacy

‘possessed divinely instituted supreme power within a uniﬁed entity of church

IV. Theocratic Kingship

⁵⁰ See above, n 39.

V. Regnum and Sacerdotium

rather as executors armed with administrative powers than as themselves ultimate

Notwithstanding the emergence of the idea of theocratic kingship, none of

⁸⁶ Wilks, above n 67, 95–96.

Although clearly inﬂuenced by the condemned heretics, Ockham and

VII. The Secularization of Government

necessary to draw on the sophisticated, theologically inspired jurisprudence of

¹⁴⁴ See above 30.

English parliamentary proceedings is replete with theological referents,¹⁵⁴ and

VIII. Medieval and Modern Constitutionalism

If a study of the inﬂuence of theological ideas in medieval political thought

dimension of the other in the name of pure presence’; as Gauchet recognizes, it

¹⁷⁰ Gauchet above n 112, 166.

Public law emerges as an autonomous ﬁeld of knowledge in the period between

I. The Methodological Turn

To backtrack a little, the Roman law revival of the late-eleventh century—the

⁹ William Farr Church, Constitutional Thought in Sixteenth-Century France: A Study in the

Hotman’s work is an expression of a general reordering of the methods of polit-

¹⁸ See Kelley, above n 3, 116–136.

II. Bodin’s Method

³⁰ Ibid. ³¹ Ibid, 2. ³² Ibid, 1.

knowledge) not before touched on by any man’.³⁷ Thus, the commonwealth of

³⁷ Ibid, 199. ³⁸ Ibid.

to reveal how it [the present commonwealth] ought to be organised’.⁷¹ Following

⁷¹ Ibid, vol 2, 310 (citing Hotman).

⁸⁰ Ibid. ⁸¹ Bodin, above n 23, 153.

⁹² Ibid, Bk 1, ch 1 (emphasis supplied); see above 58.

IV. The Constitution of Sovereignty

Althusius argues that in Book I of the République Bodin in eﬀect distinguishes

V. Modern Natural Law: Subjective Right,

of human life as the exercise of competing individual rights is close at hand’.¹²⁵

¹⁵⁸ Ibid, 480. ¹⁵⁹ Tuck, above n 121, 118.

of sociability in the form of positive laws. His analysis oﬀers an alternative to

VI. Transition Paradoxes

hands of the scholastics, reinforced the hierarchical theologico-political frame-

¹⁸⁰ Hunter, above n 168, 66.